Arja v Puncbowl Bus Co Pty Ltd [2006] NSWADT 349 (8 December 2006)

Last Updated: 8 December 2006

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL EQUAL OPPORTUNITIES DIVISION

CITATION: Arja v Puncbowl Bus Co Pty Ltd [2006] NSWADT 349


PARTIES: APPLICANT
Ibrahim Arja
RESPONDENT
Punchbowl Bus Co Pty Ltd



FILE NUMBERS: 061082

HEARING DATES: 06/12/06

SUBMISSIONS CLOSED: 06/12/2006



DECISION DATE: 08/12/2006

BEFORE: Hennessy N - Magistrate (Deputy President)





LEGISLATION CITED: Anti-Discrimination Act 1977

CASES CITED: Xu v Sydney West Area Health Service [2006] NSWADT 3

APPLICATION: Application for leave to proceed

MATTER FOR DECISION: Preliminary matter


APPLICANT REPRESENTATIVE: APPLICANT
In person

RESPONDENT REPRESENTATIVE: RESPONDENT
N Chadwick, Solicitor

ORDERS: Leave refused.


Reasons for Decision:

REASONS FOR DECISION

1 On 10 July 2006 Mr Ibrahim Arja complained to the President of the Anti-Discrimination Board that a bus driver had insulted him in front of other passengers. He said he boarded the bus and sat behind the driver’s seat. He was using his mobile phone to write a message and save it on his mobile phone. He says that the driver told him in an arrogant tone to stop using the phone. Mr Arja refused, saying that he only had one more sentence to write. The driver then asked him to go and sit in the back of the bus and finish writing his message there. According to Mr Arja the request was a racist attack on him because the driver said he would not pick him up next time. When asked, Mr Arja told the Tribunal that his race was Arabic. The ADB notified the Punchbowl Bus Co Pty Ltd of the complaint. The Manager replied that the company was "most concerned at the embarrassment caused to Mr Arja." He went on to say that the driver had been interviewed and instructed to act with sensitivity when asking passengers to go to the rear of the bus.

2 The President of the ADB declined the complaint as lacking in substance. He said that "the complainant has not provided any information to substantiate his claim that he was subjected to less favourable treatment by the respondent as a result of his race other than mere assertion." Mr Arja asked the President to refer his complaint to the Tribunal. Because the President declined the complaint, Mr Arja needs the Tribunal’s permission or "leave" before he can go proceed: Anti-Discrimination Act 1977, s 96(1).

Approach to determining leave under section 96

3 In Xu v Sydney West Area Health Service [2006] NSWADT 3, the Tribunal set out its approach to determining applications for leave under s 96. I adopt those principles in relation to this case, especially the points made at [17] and [18]:

17 The legislature has not given the Tribunal the task of conducting a merits review of the President’s decision. Consequently, it is not the Tribunal’s task to determine whether the President has made the correct and preferable decision in declining the complaint as lacking in substance. Nor has the legislature given applicants a right to appeal to the Tribunal against the legality of the President’s decision. It is not up to the Tribunal to determine whether or not the President has made an error of law. Nevertheless, as with appeals to the Court of Appeal and the Federal Court against interlocutory decisions, the legislature has given the Tribunal a gatekeeper role. That role is to ensure that a fair balance is struck between the interests of complainants in having their complaints heard and determined and the interests of respondents in not having to spend money defending unmeritorious claims. There is also a public interest in ensuring that unmeritorious complaints do not proceed to hearing. The legislature has placed the onus on the applicant to satisfy the Tribunal that the complaint should proceed notwithstanding the President’s decision that it lacks substance.
18 The discretion to have a complaint heard by the Tribunal when it has been declined as lacking in substance is unfettered and should not be constrained by rigid rules or criteria. Given the drafting history, the nature of the President’s decision and the decisions of superior courts in comparable circumstances, leave should be granted when the applicant is able to show a substantial reason for leave being granted. A substantial reason may include the fact that the complaint has reasonable prospects of success. To have reasonable prospects of success a complaint of direct discrimination must include some direct evidence, or evidence from which an inference can be drawn, linking the alleged treatment with the ground of discrimination.

4 In summary, the applicant needs to satisfy the Tribunal that there is a substantial reason for leave to be granted including that the complaint has reasonable prospects of success.

Relevant provisions

5 The relevant provision that Mr Arja would be relying on to establish that the bus company had acted unlawfully is s 19 of the AD Act which states 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.

6 If this complaint goes to a hearing, Mr Arja would have to prove that the bus company was providing him with a "service" and that they discriminated against him on the ground of his race in the terms on which they provided him with that service. Direct discrimination on the ground of race is defined in s 7(1)(a) as follows:

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

7 It is enough if race was one of the grounds for the less favourable treatment: AD Act, s 4A. The bus company is liable for unlawful acts of its employees in certain circumstances: AD Act, s 53.

Prospects of success

8 It is likely that a Tribunal would find that the bus company was providing Mr Arja with a service. It is also arguable that the treatment about which Mr Arja complains related to the terms on which that service was provided. Although he says that his complaint is one of indirect discrimination, he means by that, that the driver did not mention his race. Mr Arja’s complaint is one of direct discrimination under s 7(1)(a). He would have to prove, on the balance of probabilities, that he was treated less favourably than a non-Arabic person would have been treated in the same or similar circumstances and that at least one of the reasons for that treatment was his race. In my view, Mr Arja’s prospects of proving those matters are extremely low. There is no evidence from which an inference can be drawn that the driver would have treated a person from another race any differently or that one of the reasons he spoke to Mr Arja as he did was his race.

Substantial injustice

9 On the broader question of whether refusing leave would lead to a substantial injustice, even though Mr Arja felt insulted by the driver’s request, the incident is relatively insignificant and does not justify the time and expense that would be involved for the matter to be determined by the Tribunal.

Order

Leave refused