Turner v State Transit Authority & anor [2004] NSWADT 89 (10 May 2004)

Last Updated: 10 May 2004

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL EQUAL OPPORTUNITIES DIVISION

CITATION: Turner v State Transit Authority & anor [2004] NSWADT 89


PARTIES: APPLICANT
Andrea Turner
FIRST RESPONDENT
State Transit Authority
SECOND RESPONDENT
Anthony Bond



FILE NUMBERS: 031109

HEARING DATES: 11/12/2003 - 12/12/2003

SUBMISSIONS CLOSED: 12/12/2003



DECISION DATE: 10/05/2004

BEFORE: Britton A - Judicial MemberWeule B - Non Judicial MemberSchembri A - Non Judicial Member





LEGISLATION CITED: Anti-Discrimination Act 1977
Births,Deaths and Marriages Registration Act 1995

CASES CITED: Borg v Commissioner, Department of Corrective Services & Anor [2003] NSWADT 35
Cleary Bros (Bombo) Pty Ltd v Cvetkovski (EOD) [2001] NSWADTAP 10
Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5
Dutt v Central Coast Area Health Service [2002] NSWADT 133
Graham v Director General, Department of Community Services (EOD) [2001] NSWADTAP 4
Harding v Vice Chancellor, University of New South Wales (EOD) [2002] NSWADTAP 36
Kazak v John Fairfax Publications Ltd [2000] NSWADT 77
Martin v McKensey (No. 2) [2003] NSWADT 126
Maylor (No. 2) v- Mid North Coast Area Health Service [2001] NSWADT 118
Sivananthan v Commissioner of Police, NSW Police Service [2002] NSWADT 45
Tenzin Dhayakpa v The Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556
Tu v University of Sydney (No. 2) (EOD) [2002] NSWADTAP 25
Veloskey & Anor v Karagiannakis & Ors (EOD) [2002] NSWADTAP 18
Wagga Wagga Aboriginal Action Group v Eldridge [1995] EOC 92.
Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349
Wilde v University of Sydney (No 2) [2004] NSWADT 16

APPLICATION: Transgender - Goods and Services
Transgender - Vilification
Victimisation
Vilification - Transgender

MATTER FOR DECISION: Principal matter


APPLICANT REPRESENTATIVE: APPLICANT
In person

RESPONDENT REPRESENTATIVE: RESPONDENTS
K Eastman, barrister

ORDERS: 1. The complaint of victimisation is dismissed
2. The complaint of unlawful discrimination is dismissed
3. The complaint of transgender vilification is dismissed
4.The respondent’s application for costs is dismissed


Reasons for Decision:

REASONS FOR DECISION

1 Andrea Turner ("the Applicant") is a recognised transgender person as defined by the Anti-Discrimination Act 1977 ("the Act"). She alleges that the State Transit Authority ("the First Respondent"), through its employee driver, Anthony Bond ("the Second Respondent"), unlawfully discriminated against her and victimised her because she is a transgender person. She contends also that Mr Bond subjected her to transgender vilification. The allegations concern four incidents that occurred over the period May 2002 to March 2003.

2 By letter dated 22 October 2002, Ms Turner lodged a complaint with the President of the Anti-Discrimination Board (respectively "the President" and "the Board"). She alleged that Mr Bond "vilified me within hearing of other passengers on each occasion [15 May, 20 June and 16 July 2002] because of actual or presumed transgender status". In addition, she pointed out that she had not received a reply to her five letters of complaint to the Minster of Transport about the same issue. On 29 January 2003, the Board forwarded these allegations to the STA for comment. By letter dated 27 June 2003, the STA denied those allegations.

3 Ms Turner lodged a second complaint on 23 April 2003 regarding an incident with Mr Bond that occurred in March 2003.

4 By letter of 28 August 2003, the President referred both complaints to the Administrative Decisions Tribunal ("the Tribunal") under s 94(1) of the Act.

5 Ms Turner is a legal practitioner and represented herself in these proceedings. Ms Eastman, counsel, represented both respondents.

Claim One: Unlawful Discrimination

Relevant legislative provisions

6 Section 38M of the Act makes it unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on transgender grounds:

(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.

7 Ms Turner has cast her complaint as one of "direct discrimination". The test of direct discrimination is set out in s 38B(1)(a) of the Act:

1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on transgender grounds if, on the ground of the aggrieved person being transgender or a relative or associate of the aggrieved person being transgender, 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 he or she did not think was a transgender person or who does not have such a relative or associate who he or she did not think was a transgender person, or

2) For the purposes of subsection (1) (a), something is done on the ground of a person being transgender if it is done on the ground of the person being transgender, a characteristic that appertains generally to transgender persons or a characteristic that is generally imputed to transgender persons.

8 Section 4 A of the Act provides that, where an act is done for two or more reasons, and one of the reasons consists of unlawful discrimination, the act is taken to have been done for that reason.

9 It is not in issue that the Applicant is a "recognised transgender person" defined by s 4 of the Act to mean a person the record of whose sex is altered under Part 5A of the Births, Deaths and Marriages Registration Act 1995.

10 Section 38A of the Act provides that a reference in Part 3 A of the Act to a person being transgender or a transgender person includes a reference to the person being thought of as a transgender person, whether the person is, or was, in fact a transgender person.

11 Section 53 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.

(4) For the purposes of subsection (1), the principal or employer of a volunteer or unpaid trainee who contravenes Part 2A is the person or body on whose behalf the volunteer or unpaid trainee provides services.

Issues

12 To succeed in her claim of unlawful discrimination, Ms Turner must establish in respect of each incident:

First, that the conduct she complained of falls within s 38M of the Act;

Second, that Mr Bond knew or thought her to be a transgender person;

Third, that Mr Bond treated her less favourably than he treated, or would have treated, a person who is not a transgender person in the same circumstances, or in circumstances which were not materially different;

Fourth, that one of the reasons for any less favourable treatment was her transgender status;

Fifth, that, through the operation of s 53 of the Act, the STA is liable for Mr Bond’s conduct.

Evidence

Incident One: 15 May 2002

13 On 15 May 2002, Ms Turner took a crowded bus from Neutral Bay to Milson’s Point. She remarked to the driver, Mr Bond, that some drivers insist that school children give up their seats to adults. According to Ms Turner, Mr Bond replied: "I haven’t got time to argue, mate", to which she responded, "I couldn’t possibly be your mate". Ms Turner said she then asked to see Mr Bond’s driver identification and he replied, "Step back behind the line".

14 According to Ms Turner, as she alighted from the bus, she announced that she intended to report Mr Bond for failing to display his ID, to which he replied, "Get off the bus lady, you stupid fucking moron"("the second conversation").

15 Ms Turner claims she immediately made a handwritten note of the incident, which she did not keep. On arrival at her office soon after, she faxed a complaint to the STA along the lines of the account set out above.

16 In a statement tendered in these proceedings dated 13 November 2003, Mr Bond claimed he could no longer specifically recall this incident although he did remember that at about that time Ms Turner had spoken to him about kids giving up their seats. He stated that he "did not believe" that he had used the words attributed to him in respect of the second conversation. In a reply to the Board dated 18 July 2003, he claimed that while he may have been short with Ms Turner, he believed he had been polite "as found when investigated by State Transit". In cross-examination, he said he sometimes used the term "mate" when addressing women. He claimed that he did not know at this stage that Ms Turner was a transgender person.

17 Ms Turner claims that people commonly recognise that she is not a biological female after hearing her speak, especially in circumstances where she has difficulty controlling her voice. During this incident, she claims to have been out of breath because she had been manoeuvring a large bag on and off the bus.

Incident Two: 20 June 2002

18 On 20 June 2002, Ms Turner boarded a bus at Neutral Bay. She claimed that the bus went through a red light. She noted that Mr Bond was the driver and his ID was not on display. Ms Turner claims she then confronted Mr Bond and he replied, "You again...moron, stupid". Ms Turner then told him that she intended to report him, to which he replied, "Cross dresser".

19 In his statement, Mr Bond claimed that he recalled Ms Turner berating him about his ID and running the red light (which he denies). He conceded that he could have said the words, "You again" and "It’s none of your business. I’m driving the bus". Under cross-examination, he said that he could not deny saying "moron, stupid" or using the words "cross dresser".

20 Ms Turner rang the STA customer complaints line shortly after this incident. The note of that call taken by the operator is broadly consistent with the account given in evidence by Ms Turner but makes no mention of the "moron, stupid" or "cross dresser" allegation. It states "caller states he was given abuse as he was a transvestite".

21 In a letter to the Minister for Transport, dated 25 June 2002, Ms Turner complained about this incident. The account set out in that letter was consistent with the account given by Ms Turner in evidence.

Incident Three: 16 July 2002

22 On 16 July, Ms Turner boarded a bus driven by Mr Bond and made a note of his ID number. On arrival at North Sydney she left the bus, re-boarded and double-checked Mr Bond’s ID.

23 Ms Turner claims Mr Bond then told her to "piss off". In his statement, Mr Bond claimed that while he did not remember this incident specifically, he did recall that about this time Ms Turner had subjected him to "unwarranted interference". Under cross-examination, he conceded that he might have used those words.

24 Ms Turner lodged a complaint with the STA on the day of that incident.

Incident Four: 22 March 2003

25 On Saturday, 22 March 2003, Ms Turner and Mr Bond were passengers on a bus travelling from Neutral Bay to Wynyard Station. Mr Bond was off-duty and on his way home. Ms Turner approached him and asked repeatedly: "Mr Bond, why did you lie to the Inspector? Why did you lie about your ID card being up?" Mr Bond asked her to sit down, as did the driver.

26 Ms Turner proceeded to photograph Mr Bond while he was standing and talking to the driver.

27 Both alighted at Wynyard station. At the top of the stairs, Ms Turner asked loudly "Mr Bond, I thought you were a courageous man. Why did you lie to the inspector about your ID card?" According to Ms Turner, Mr Bond said, "Piss off you fucking idiot moron...I’ll take your camera". This is denied.

28 Ms Turner followed Mr Bond to the escalator leading down to the trains and repeatedly asked, "Why did you lie Mr Bond?" Ms Turner tape-recorded that conversation. Ms Turner claims she later discovered that the tape was faulty and no recording had been made.

29 Mr Bond claims that while he was on the escalator he felt something touch his left shoulder, raised his arm and swung around to protect himself. He claims he was stressed and worried. Ms Turner denies touching him and claims that she was about three feet away. She claims that he directed his elbow at her face but luckily, she saw it coming, stood back and it "glanced off" her jaw.

30 Ms Turner continued to follow Mr Bond, calling him a coward. She said, "Why have you assaulted a woman in public" and claims he replied, "If you are one". This is denied.

31 In cross-examination, Ms Turner denied that she had followed or attempted to belittle or embarrass Mr Bond. She agreed that he asked her to leave him alone.

32 The day after this incident Mr Bond complained to police and an interim Apprehended Violence Order (AVO) was taken out. Ms Turner also complained to police and gave a statement. Mr Bond subsequently withdrew his AVO application. At his request, shortly after this incident he was transferred to Newcastle, which was closer to where he lived.

33 In cross-examination, Mr Bond agreed that he had not seen Ms Turner since July 2002. This is contrary to his claim to police that Ms Turner had stalked him since October 2002 (Mr Bond’s statement to police, 23 March 2003, para. 4).

Investigation into complaints

34 Ms Turner’s complaints to the STA were first brought to Mr Bond’s attention during an interview conducted by Bus Depot Manager, Mark Cruden, in October 2002. A file note of that meeting records that Mr Bond denied all allegations, including the cross-dresser allegation. On 10 April 2003, Mr Bond was interviewed over the fourth incident. The investigating officer recorded that Mr Bond denied vilifying or assaulting Ms Turner. The report of interview states: "Mr Bond claims that after being nudged in the back by Ms Turner he raised his elbow in a self-defensive reaction while facing forward to protect himself but did not come into contact with Ms Turner." The record of interview (not a verbatim transcript) noted that Mr Bond admitted that he had not displayed his driver ID and that he had been speaking to the driver of the bus while the bus was moving.

Findings of fact

Did Mr Bond know or think Ms Turner was a transgender person?

35 Mr Bond’s evidence is to the effect that he neither knew, nor suspected, that Ms Turner was, to use his words, " not an ordinary lady". Geoff Baldwin, the STA’s Human Resources Manager, in a letter to Ms Turner dated 25 June 2003 states that throughout two investigations, Mr Bond had steadfastly denied suspecting she was a transgender person.

36 In our view, it is implausible that by the time of the Wynyard Station incident Mr Bond did not at least suspect that Ms Turner was a transgender person given that six months earlier the "cross-dresser" allegation had squarely been put to him. Less straightforward is when Mr Bond first knew, or suspected that Ms Turner was "not an ordinary lady". Ms Turner asserts that Mr Bond "penetrated her mask" during their first encounter in May 2002. In support, she relies on Mr Bond’s use of the term "mate".

37 In our view, the use of the term "mate" of itself establishes little. "Mate", in our experience is no longer a term used solely to refer to men. No doubt, as Ms Turner asserts, some men use the term in that way, however it does not necessarily follow that Mr Bond does.

38 Ms Turner contends that it is simply implausible that at some point during Incident One, that Mr Bond did not at the very least suspect something. Ms Turner presented in these proceedings as a well-groomed, attractive woman in her forties. There is nothing before us to indicate that she presented otherwise during the incidents the subject of her complaints.

39 Ms Turner asserts that Mr Bond must have been alerted to the fact that she was not a biological female after hearing her "male" voice. In support, she relies on a paper by academic, Jennifer Oates, which argues that the voices of male-to-female transsexuals are often incongruent with their desired gender role and readily betray their biological sex to third parties. Ms Turner claims that, within a limited range, she has some control over the pitch of her voice and can make it "more female" [higher]. However, on the day in issue she claims her control was limited as she was out of breath having struggled with a heavy bag on and off the bus.

40 Ms Turner can, of course, only speculate as to whether other people can spot her gender origin. She has, however, first-hand experience of observing how people react to her in a range of circumstances and this evidence cannot be ignored.

41 It may be, as Ms Turner believes, that because of her voice and certain physical features, such as her size, Mr Bond guessed she was a transgender person. On the other hand, it is equally possible, that Mr Bond had simply not given the matter any thought. Even if Ms Turner’s hypothesis is accepted it must be remembered that their first verbal exchange occurred while Mr Bond was hopefully preoccupied with his duties as a driver. Taking all the circumstances into account we cannot be satisfied that Mr Bond knew or suspected that Ms Turner was a transgender person during the course of the First Incident.

42 In respect of the Second Incident, we accept Ms Turner’s claim that Mr Bond called her a "cross-dresser". Complaint evidence is powerful evidence that cannot be ignored. Here Ms Turner complained shortly after the incident. In contrast to her letter of complaint to the Minister for Transport, the phone log taken by the STA operator does not refer to the cross-dresser allegation, however it is to be noted that the log entry is a summary only. While Mr Bond has consistently denied the "cross-dresser" claim to his employer, his denial, tested in cross-examination could at best be described as equivocal.

43 "Cross-dresser" is not a term of general abuse and, in our view, the only inference that can be drawn from Mr Bond’s use of the term, is that he knew or at least suspected Ms Turner was not a biological female.

Incident Two

44 The evidence makes it clear that Mr Bond was annoyed with Ms Turner and thought her interference unwarranted.

45 There are subtle but significant differences between the various accounts given by Mr Bond. In his reply to the Board, he denies "insulting or abusing [Ms Turner] in a discriminatory manner". In his written statement, he does not expressly deny insulting Ms Turner. Under cross-examination, he said he could neither recall nor deny the words attributed to him.

46 Ms Turner invites us to find that under cross-examination there was a "total collapse" of Mr Bond’s earlier denials. A more innocent explanation may be that over time his recollection had faded.

47 Mr Bond’s evidence is, of course, only one part of the puzzle. Ms Turner’s unwavering account first recorded five days after the incident, was that Mr Bond called her "moron, stupid" and "cross-dresser".

48 On balance, we are satisfied that Mr Bond used these words.

Incident Three

49 We find that Mr Bond told Ms Turner to "piss off".

Less Favourable Treatment and Causation

50 It is not altogether clear from the Points of Claim what conduct by Mr Bond is alleged to constitute discrimination. Accordingly, we take the somewhat unorthodox course of first considering whether, if proven, the alleged conduct or part thereof would meet the test set out in s 38B(1)(a) and, if so, go on to determine whether that conduct falls within the scope of s 38M.

51 In Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5, an Appeal Panel of the Tribunal formulated a question which it said should be determined in all cases of direct discrimination. Restated for the purpose of this case that question is: "Did Mr Bond, on the ground that Ms Turner is a transgender person, treat her less favourably than he treated, or would have treated, a person who is not a transgender person in the same circumstances, or in circumstances which were not materially different?"

52 A determination of less favourable treatment requires us to make a comparison between the treatment afforded Ms Turner, and that afforded a passenger who was not transgender, or thought not to be. There is no evidence of an actual comparator for either incident. Therefore, we must look to a hypothetical construct, that is, a fictional passenger who was not, or thought not to be by Mr Bond, a transgender person and who found themselves in circumstances not materially different to those of Ms Turner.

53 As noted, we have accepted Ms Turner’s account of the words exchanged during the second and third incidents. The issue is not whether either party acted appropriately or reasonably, but whether in comparable circumstances, Mr Bond would have treated a non-transgender person or a person thought to be transgender, more favourably. Viewed objectively, Ms Turner’s conduct on both occasions could be seen as provocative and it is not surprising that it got Mr Bond’s "back up". On each occasion, he was responsible for driving a crowded commuter bus through peak-hour Sydney traffic, after having risen early and travelled a significant distance to get to work. Minds may differ on whether Ms Turner’s behaviour was appropriate but this is largely irrelevant. The issue for us to determine is whether, if confronted in a similar fashion by a non-transgender person, Mr Bond would have acted differently.

54 In respect to the Second Incident, except for the "cross-dresser" reference, we are not persuaded that Mr Bond would have shown greater restraint had a non-transgender person confronted him. However, that slur colours the incident, making the conduct something more than the use of mildly offensive language by a harassed driver. It represents a deeply personal attack concerning Ms Turner’s gender. We are satisfied that the use of the term "cross-dresser" in these circumstances constitutes less favourable treatment. Further, we are satisfied that one of the reasons Mr Bond called Ms Turner a "cross-dresser" was because he thought she was a transgender person.

55 We turn now to the third incident. Ms Turner asserts that by telling her to "piss off," Mr Bond subjected her to less favourable treatment.

56 The recent decisions of Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [63]- [65] and Martin v McKensey (No. 2) [2003] NSWADT 126 at [46] discussed the practical difficulties of adopting the approach advocated by the Appeal Panel in Commissioner of Corrective Services v Aldridge of determining less favourable treatment in advance of causation where that assessment relies on a hypothetical comparator. Likewise, in this case we believe it is useful to first consider causation.

57 Accordingly, we must ask whether one of the reasons Mr Bond used the words "piss off" was because he thought Ms Turner might not have been an "ordinary lady". In our view, it is unlikely he would have welcomed anyone re-boarding the bus and taking down his ID number as Ms Turner had done. It is, of course, possible that he may have shown greater restraint were it was not for his suspicions about Ms Turner, but we cannot be satisfied on balance that this was so. Nor can we be satisfied that in the circumstances he would have treated a non-transgender person more favourably.

Summary

58 We find that Mr Bond’s conduct in calling Ms Turner a "cross-dresser" constitutes discrimination on transgender grounds as defined by s 38B(1)(a). Those parts of the complaint that relate to Incidents One and Three and the balance of the complaint in relation to Incident Two are dismissed.

Does this conduct fall within s 38M?

59 The Tribunal, when dealing with a complaint of unlawful discrimination, must determine whether the alleged conduct, if proven, falls within the scope of one of the statutory prohibitions provided within the Act. That is a question of law. If the Tribunal finds that the alleged conduct does so, it must then examine the evidence to determine whether the Applicant has discharged the onus of proving the allegation. Conversely, the Tribunal may winnow the facts from the evidence and apply the legal principles to the facts to determine whether the proven conduct falls within the scope of the statutory prohibitions.

60 Here we examine the legal question. Does the conduct found proven – that Mr Bond called the Applicant a "cross-dresser" - fall within the scope of s 38M?

61 The relevant provision is s 38M(b) of the Act which makes it unlawful for a person who provides services to discriminate against another person on transgender grounds "in the terms on which the other person is provided with those goods or services." In this case, there was no refusal to provide the service (namely, transport from the point at which Ms Turner boarded the bus to her destination).

62 The key question is whether the STA, through Mr Bond, discriminated against the Applicant in the terms on which it provided transport services to her.

63 To answer that question, it is necessary to identify or establish the terms on which the service was provided to the Ms Turner. Ms Turner has not addressed us on this issue. Counsel for the Respondents submits that the claim must therefore fail because the Applicant has failed to identify how the impugned conduct falls within the scope of s 38M. We do not think that the issue can be resolved in that summary fashion.

64 It is agreed that the STA, through Mr Bond, provided services as defined by s 4 of the Act to the Applicant. The Respondents contend, however, that there is no basis for the claim that the alleged unlawful conduct concerned the terms on which that service was provided. Rather they say Ms Turner’s complaint is a complaint about the manner in which that service was provided. The Respondents contend that NSW Parliament, unlike other jurisdictions, has not sought to catch the manner in which a service is provided within the scope of anti-discrimination legislation.

65 The issue turns on a proper construction of s 38M(b). Because it is remedial legislation, the Act should be construed broadly to give effect to the objects and purposes of the Act: Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 359.

66 It is common knowledge that in most commercial contracts, especially for inexpensive goods or services there are express and implied terms. For example, it is a term of the contract (as well as a statutory or regulatory requirement) that a passenger using a public transport service will offer the correct fare for the service prior to using the service or on demand, depending on the circumstances. A passenger offering his or her fare to a bus operator also accepts an implied condition that he or she will comply with the regulations pertaining to the conduct of passengers on the bus.

67 A bus operator clearly contracts to provide a bus service to the paying passenger. In addition, there are also a number of terms implied in the simple contract formed on the front step of the bus. These include, for example, a condition that the bus will be operated by a properly qualified driver; that at the time the bus service is offered, the driver will be fit to drive; that the bus will be reasonably safe and clean and fit for its purpose; that the bus will be driven in a careful and prudent fashion; that the bus service will follow the established route and stop as required, and so on.

68 If a bus operator persistently insulted a passenger on the basis that he or she was, for example, Jewish or an Aboriginal person, so that the passenger could not board the bus without receiving a racial insult with his or her ticket, it would be reasonable to infer that, as far as that operator was concerned, one of the terms on which he or she would provide the service to the passenger was that the passenger accept a racial slur in order to ride on the bus.

69 Although we have received no argument on the question, it would seem that there is an implied term in these types of contracts that bus operators will treat their passengers with reasonable courtesy. The STA’s Code of Conduct requires employees to be polite and helpful when dealing with passengers and show respect and consideration at all times. Here the service offered by the STA was on terms, among others, that Mr Bond would conduct himself with civility and in a non-discriminatory fashion towards all passengers.

70 In this case, Ms Turner approached Mr Bond and confronted him, thus initiating the exchange of unpleasantries. Whether that approach was justified is not in issue here. Up to that point, Mr Bond had already provided part of the service on terms which were no less favourable than for other passengers. He had not picked Ms Turner out as she boarded and subjected her to insults or harassment. Nevertheless, he continued to be bound by the terms of the contract with Ms Turner. Whether or not Ms Turner provoked Mr Bond, the fact that he called her a "cross-dresser" seems to us to be a breach of the term of the contract by which the First Respondent was bound. It is not clear to us, however, that this constituted a breach of s 38M(b).

71 In our opinion, there is a gap or loophole in the s 38M which is relied on by the Respondents. Parliament may have intended to cover both the terms on which services were provided and the manner in which such contracts were performed. However, because s 38M(b) refers ambiguously to the "terms on which the other person is provided with those goods and services", this seems to us to be a very strained interpretation of the section. The acuteness of the strain placed on the interpretation is made plain by the fact that counsel for the Respondents has referred us to legislation in other jurisdictions which shows that other Parliaments have been aware of the material distinction to be drawn between the terms on which a service is agreed to be provided and the actual performance of the service.

72 Section 38M(b) prohibits service providers from placing special, discriminatory conditions on their provision of services to transgender persons. In short, it seems to us that the prohibition relates to the terms and conditions on which services are offered to transgender persons. They must be no less favourable than the terms and conditions offered to other persons, in this case potential users of public bus services. Critically, the terms on which a service is provided are, unless later varied by agreement, settled before the service is provided. What happens after that is a matter of performance of the contract. In other words, it relates to the manner in which the service is actually provided.

73 We see no evidence on Mr Bond’s part, nor on the STA’s, of an intention to discriminate against transgender persons in the terms on which the bus service was provided to them. Ms Turner was allowed to board Mr Bond’s bus on exactly the same terms as everyone else.

74 Deplorable as the insult used by Mr Bond may have been, his argument with Ms Turner did not relate to the terms on which the service was provided to Ms Turner. Rather it related to the manner in which he provided it to her and that, in our opinion does not come within the scope of s 38M(b). It appears to us to be anomalous that there is no equivalent statutory prohibition in s 38M against providing a service in a manner which is in practice discriminatory. However that appears to be the case. It is a matter which ought be rectified urgently by the NSW Parliament.

75 In case our interpretation of s 38M(b) is ultimately found to be incorrect and the sub-section is wide enough to catch Mr Bond’s conduct, we ought place the exchange in its proper context so that the gravity of the breach (if it is one) is properly assessed. As we observed, whether Ms Turner was entitled as she did to question Mr Bond about the display of his identification and running red light is a matter on which minds might differ. It is arguable that a member of the travelling public is entitled to be satisfied that a properly qualified driver is in charge of the bus on which they are travelling. Ms Turner was also surely entitled to protest against a bus driver running a red light (if that was the case). Mr Bond appears to have reacted as a person who believed he was the victim of an officious bystander and was clearly annoyed and possibly annoyed by Ms Turner’s confrontation of him. Bus driving is by all accounts a highly stressful profession and this no doubt explains in part his conduct towards Ms Turner on the occasion he called her a "cross-dresser".

76 This was a one-off exchange in which a distressing insult was used. Mr Bond, on the evidence before us, did not engage in any systematic discrimination or harassment against Ms Turner and the one occasion on which we are satisfied he did act in a discriminatory fashion was in the heat of the moment during an exchange in which Ms Turner seems to have been holding her own.

77 In our view, the conduct complained of does not fall within the scope of 38M(b) and accordingly the claim of unlawful discrimination must be dismissed.

Claim Two: Vilification

78 Ms Turner contends each incident constitutes transgender vilification under s 38S of the Act.

79 Section 38S(1) of the Act provides:

(1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of:

(a) a person on the ground that the person is a transgender person, or

(b) a group of persons on the ground that the members of the group are transgender persons.

80 "Public act" is broadly defined by s 38R to include any form of communication to the public, any conduct observable to the public. This Tribunal has consistently given these words broad meaning. (See for example Burns v Dye [2002] NSWADT 32 at para.[16] to[18]).

81 The Appeal Panel in Veloskey & Anor v Karagiannakis & Ors (EOD) [2002] NSWADTAP 18 considered in some detail the operation of s 20C(1) of the Act which makes racial vilification unlawful and is materially identical to s 38M. The following principles may be distilled from that decision:

the word "incite" is to been given its ordinary English meaning, namely, to urge, spur on, stir up, animate, stimulate or prompt to action: para. [21];

it is not necessary to prove intent or that anyone was actually incited. Rather the test is whether the public act which is the subject of complaint is capable, in an objective sense, of inciting others to feel hatred towards or serious contempt for, or severe ridicule of a person or persons on the ground as alleged: para. [25] and [26];

the words "hatred", "contempt" and "ridicule" are to be given their ordinary English meaning, but the latter two are qualified by the adjectives "serious" and "severe" respectively. See Kazak v John Fairfax Publications Ltd [2000] NSWADT 77; Burns v Dye). The use of the adjectives "serious" and "severe" call for an evaluative judgment on the part of the tribunal of fact, within a broad discretion: Tenzin Dhayakpa v The Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556: para. [29];

it is not sufficient if words merely convey hatred or express serious contempt or severe ridicule: Wagga Wagga Aboriginal Action Group v Eldridge [1995] EOC 92-701: para. [21];

the relevant ground or characteristic ground must be "a substantially contributing factor" to the incitement: Kazak v John Fairfax Publications Ltd; Western Aboriginal Legal Service Ltd v Jones & Anor. [2000] NSWADT 102; Burns v Dye: para [30];.

the audience, against which the capacity of the public act to incite, is to be tested, is the"ordinary, reasonable person", described by the Court of Appeal in the context of defamation law as"the ordinary reasonable reader (or listener or viewer) [who] is a person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. That person does not live in an ivory tower but can and does read between the lines in the light of that person's general knowledge and experience of worldly affairs.": Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158: para. [26].

Findings of Fact: Incident Four

82 The only significant factual issues in dispute are whether Mr Bond struck Ms Turner and said "If you are one [a woman]".

83 Before dealing with these matters, we make the following observations. Ms Turner’s claim that she was not following Mr Bond in our view simply beggars belief. On her own evidence, she pursued Mr Bond after leaving the bus at Wynyard station to get a taped confession. This may well have constituted an offence under the Listening Devices Act as she had not obtained Mr Bond’s consent and, in the circumstances, it cannot be implied. Nor was she protecting her lawful interests. She was, in effect, conducting a clearly unwelcome investigation into Mr Bond’s conduct. In cross-examination, she conceded that he asked to be left alone. The explanation for this extraordinary conduct may lie in part with Ms Turner’s frustration with what she saw as the STA’s tardiness in dealing with her complaints. Whatever the motivation, viewed objectively her conduct had the capacity to acutely embarrass Mr Bond.

84 Ms Turner submits that Mr Bond’s account (to the extent that it differs from her own) cannot be believed as he has proven to be an unreliable witness in the course of these proceedings. Among other things, she points to his wrongful claim that his ID was displayed at all times and his stalking allegation made to police.

85 It is to be noted in respect of the latter, that Mr Bond’s statement records he "felt he was being stalked; that this lady always seems to always be catching the bus I was driving" [emphasis added]. This statement must be seen in context. The day earlier, he had been followed and embarrassed by Ms Turner. Given that experience, it is likely that he came to see his earlier encounters with Ms Turner in the worst possible light. Viewed objectively, Ms Turner’s conduct on the bus to Wynyard and at Wynyard Station might well give rise to a reasonable suspicion that she was harassing Mr Bond whenever she had the opportunity. However, after July 2002, there are no grounds for Mr Bond to reasonably conclude that Ms Turner was stalking him. While there is no evidence that Ms Turner stalked Mr Bond between July 2002 and March 2003, it does not follow that his evidence is unreliable because he reported that he felt he had been stalked over that period.

86 While his denial to inspectors over his ID does that him little credit, it does not follow that all his evidence must therefore be dismissed as unreliable. People may not tell the truth about peripheral matters for reasons which are perfectly explicable. Mr Bond presumably faced the possibility of minor disciplinary action if he did not display his ID. That could explain his reluctance to admit this breach. It does not follow that his account of the confrontations between Ms Turner and himself is necessarily to be disbelieved.

87 On close examination, it would appear that there is no significant difference in the respective accounts given of the so-called assault. Ms Turner was close behind Mr Bond on the escalator; he was on edge and turned and swung his elbow; Ms Turner was not apparently injured. On the evidence before us, it is not possible to determine whether the elbow glanced her jaw or not.

88 Of greater relevance is whether Mr Bond said, "If you are one [a woman]". While in the circumstances it is plausible, the conflicting accounts of both parties are unsupported. Neither Ms Turner nor Mr Bond was dispassionate in the manner they gave evidence. Both have a vested interest in the outcome of the proceedings. The complaint evidence of each is consistent with the respective accounts given in these proceedings. It is word against word. On the available evidence, we cannot be satisfied to the requisite standard that Mr Bond used these words.

Findings and Conclusions

89 To succeed in this claim Ms Turner must establish the following elements in respect of each incident:

a public act

which incites

hatred towards, serious contempt of or severe ridicule of a person or group of persons

on the grounds of her transgender status

90 Public Act There is no evidence before us that anyone overheard what Mr Bond said to Ms Turner. We are satisfied however that what he said was capable of being overheard by third parties. Accordingly, we find that the words used by him constitute a "public act".

91 Incitement There is no direct evidence that Mr Bond intended to, or did in fact incite anyone during the course of any of the four incidents. Nor are we satisfied that such an inference can be drawn. In the absence of such evidence, we must ask in respect of each: did the words spoken by Mr Bond have the capacity to incite the ordinary, reasonable person to feel hatred towards, or serious contempt for, or severe ridicule of Ms Turner on the grounds of her transgender status?

92 We have found that Mr Bond made no express or implied reference to Ms Turner’s transgender status in the course of Incidents One, Three and Four. It follows that a bystander overhearing those exchanges could not have been aroused to the requisite reactions (hatred, serious contempt, or severe ridicule) on the ground of Ms Turner’s transgender status. Accordingly, the claim in respect of each must fail.

93 We are left therefore with Incident Two, specifically the "cross-dresser" insult. The use of that term indicates that Mr Bond sought to insult or embarrass Ms Turner. It is insufficient, however, that the conduct simply conveyed hatred, serious contempt or severe ridicule (even if it is accepted it did). What must be established is that those words were capable of urging, stimulating, or prompting the ordinary, reasonable person to have the requisite feelings of ill-will towards Ms Turner. There will often be a fine line between conduct that merely conveys hatred, contempt and ridicule and that which goes the further step, of inciting or arousing such emotions among third parties. It is understood that there are individuals within our community who hold views about transgender persons that at best could be described as intolerant. The mere outing of a transgender person might be enough to arouse or incite the requisite feelings among members of this group. However, as the authorities have consistently cautioned, the "malevolent or unthinking" (Inquiry Into Broadcasts by Ron Casey (1989) 3 BR 351 at 357) are not to be used as the yardstick for testing how the ordinary, reasonable person might react.

94 We do not believe that Mr Bond’s use of the term "cross-dresser" was capable of arousing feelings of hatred towards Ms Turner but consider it likely that those words could have aroused feelings of dislike or contempt or ridicule for her. However we do not think that in the context in which the exchange occurred it would have been capable of arousing serious contempt or severe ridicule. These adjectives underscore that the arousal of fleeting or low-level contempt or ridicule is not enough to come within s 38S(1). The conduct must be capable of arousing reactions at the extreme end of the scale. Given the brevity of the exchange and the circumstances in which it occurred, we do not consider it would have been capable of arousing the requisite emotions.

95 Having carefully examined this incident, we are not satisfied on balance that the conduct was capable of inciting hatred towards, serious contempt of or severe ridicule. Accordingly, the claim of unlawful vilification is dismissed.

Victimisation

96 Ms Turner claims that Mr Bond’s conduct in Incidents Two, Three and Four constitutes victimisation contrary to s 50(1) of the Act. We understand that Ms Turner does not press the claim of victimisation in respect to the Second and Third Incidents.

97 Section 50 provides

(1) It is unlawful for a person ("the discriminator" ) to subject another person ( "the person victimised" ) to any detriment in any circumstances on the ground that the person victimised has:

(a) brought proceedings against the discriminator or any other person under this Act,

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

98 Ms Turner must prove in respect of each incident that Mr Bond:

subjected her to any detriment;

on the ground that she has done one of the things set out in sub-paragraphs (a),(b), (c) and (d) of s 50(1) of the Act.

99 Mr Bond first became aware that Ms Turner had lodged a formal complaint with his employer in October 2002. Before that, he anticipated a complaint would be made: Ms Turner had told him as much. There is, however, no direct evidence or any evidence on which we could draw the inference that before the interview with Mr Cruden, Mr Bond knew or suspected, that the scope of Ms Turner’s complaint went beyond matters relating to his conduct as a driver, in particular the display of ID. In the absence of any evidence that he knew Ms Turner had, or intended to do, any one of the things set out in paragraph (a) to (d) of s 50(1) or, suspected that she might, the claim in respect of the Second and Third incidents must fail.

100 The evidence of what Mr Bond knew in March 2003 about Ms Turner’s complaints is not clear. While the Board did not notify him until July 2003 that a complaint under the Act had been made about him, he knew of the cross-dresser allegation from October 2002. While he may not have aware that that allegation, if proven could amount to a contravention of the Act, as is made clear by paragraph (c) of s 50(1), this is not necessary. It is enough that he knew of the allegation.

101 Detriment To succeed in her claim Ms Turner must establish that Mr Bond in the course of Incident Four, subjected her to a detriment. Section 50(1) catches any detriment in any circumstances. The meaning of "detriment" was considered in Bonella v Wollongong City Council [2001] NSWADT 194 at [50]:

...detriment" should be given its common meaning of "loss, damage or injury". It has also been held in those cases that "the detriment suffered by the complainant must be real and not trivial" and "whether something constitutes a detriment must be determined objectively and not subjectively" (see Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 [at 41])

102 In our view, the only conduct on Mr Bond’s part that could conceivably constitute "loss, damage or injury" was the so-called assault on the escalator. To fall within s 50(1) it must be established that a "significant factor" or a "real or operative ground" for Mr Bond treating Ms Turner in this way was because he knew or suspected she had made an allegation of unlawful conduct under the Act. (See Denmeade v Kempsey Shire Council and ors [no.2] [2003] NSWADT 225 at par. 174) We are not persuaded that Mr Bond acted (or reacted) as he did, because Ms Turner had made an allegation of unlawful conduct under the Act or thought that she might. The evidence shows that Mr Bond did not seek out Ms Turner on this day. His conduct towards her was largely a reaction to being followed and provoked. Without the necessary causal link, this claim must fail.

103 The claim of victimisation is dismissed.

Costs

104 The Respondents seek an order for costs.

105 Section 114 (1) of the Act provides that each party to an inquiry shall pay his or her own costs. However s 114(2) grants the Tribunal a discretion to "make such orders as it thinks fit" where it "is of the opinion in a particular case that there are circumstances that justify it doing so".

106 The principles underlying this provision are well known and have been the subject of detailed consideration by the Equal Opportunity Division of the Tribunal: Cleary Bros (Bombo) Pty Ltd v Cvetkovski (EOD) [2001] NSWADTAP 10; Graham v Director General, Department of Community Services (EOD) [2001] NSWADTAP 4; Tu v University of Sydney (No. 2) (EOD) [2002] NSWADTAP 25; Harding v Vice Chancellor, University of New South Wales (EOD) [2002] NSWADTAP 36; Borg v Commissioner, Department of Corrective Services & Anor [2003] NSWADT 35; Sivananthan v Commissioner of Police, NSW Police Service [2002] NSWADT 45; Maylor (No. 2) v- Mid North Coast Area Health Service [2001] NSWADT 118 and Wilde v University of Sydney (No 2) [2004] NSWADT 16.

132 In Tu v University of Sydney the Appeal Panel observed at [42] that "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."

132 The Respondents contend that Ms Turner’s case had no tenable basis in fact and, accordingly, the circumstances of this case warrant a departure from the legislative presumption against costs. While Ms Turner ultimately failed to substantiate all of her complaints, in our view her claim could not be described as hopeless from the outset or without any tenable basis in fact. Ms Turner made serious allegations of transgender discrimination, transgender vilification and victimisation. In essence, the outcome of these proceedings depended on issues of credit and credibility and the onus of proof. That part of the vilification claim relating to Incident Two ultimately failed because of an evaluative judgement made by us of how the "ordinary, reasonable person" would react in the circumstances. This is a matter on which opinions could differ.

132 We do not agree with the Respondents’ contention that the circumstances of this matter warrant an order for costs and accordingly dismiss their application.

Orders

1. The complaint of victimisation is dismissed.

2. The complaint of unlawful discrimination is dismissed.

3. The complaint of transgender vilification is dismissed.

4. The Respondents’ application for costs is dismissed.