Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hussein v Sydney Trains [2020] NSWCATAD 155 Hearing dates: 27 April 2020 Date of orders: 19 June 2020 Decision date: 19 June 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: A Britton, Principal Member Decision: The application made by Sydney Trains to dismiss the Complaint is refused. Catchwords: HUMAN RIGHTS — discrimination — whether power to dismiss complaint summarily under s 102 of the Anti-Discrimination Act 1977 should be exercised WORDS AND PHRASES — meaning of "misconceived" and "lacking in substance" EVIDENCE — drawing of inferences – permissible inference v conjecture and speculation Legislation Cited: Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Alchin v Rail Corporation NSW [2012] NSWADT 142 BDK v Department of Education and Communities [2015] NSWCATAP 129 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 Marshall v Prescott [2015] NSWCA 110 Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 Commissioner of Corrective Services v Dezfouli [2008] NSWADTAP 85 Commissioner of Police v Mohamed [2009] NSWCA 432 Commissioner of Police, NSW Police Service v Estate Edward John Russell & Ors [2001] NSWSC 745 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91; [1949] HCA 1 Director-General, Department of Community Services and Anor [2003] NSWSC 1241 Flounders v Millar [2007] NSWCA 238 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 IW v City of Perth (1997) 191 CLR 1; [1997] HCA 30 Kitoko v Sydney Local Health District [2017] NSWCATAD 209 Kitoko v Sydney Local Health District [2018] NSWCATAP 38 Langley v Niland & Anor (1981) 2 NSWLR 104 Margan v University of Technology, Sydney (EOD) [2003] NSWADTAP 65 Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 Owners Corporation of Strata Plan 4521 v Zouk [2007] NSWCA 23 Purvis v New South Wales (2003) 217 CLR 92; [2003] HCA 62 Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 Seventh Day Adventist Church (North NSW Conference) Ltd v Seupule-Feau [2016] NSWCATAP 256 State of New South Wales v Whiteoak [2014] NSWCATAP 99 State of NSW (NSW Police Force) v Whitfield (EOD) [2012] NSWADTAP 27 Waters v Public Transport Corporation (1991) 173 CLR 349; [1991] HCA 49 Texts Cited: None cited Category: Procedural and other rulings Parties: Qurban Ali Hussein (Applicant) Sydney Trains (Respondent) Representation: Counsel: M Baroni (Respondent) Solicitors: Applicant (Self Represented) Bartier Perry (Respondent) File Number(s): 2019/00300885 Publication restriction: Nil REASONS FOR DECISION 1. On 21 April 2018, while travelling by train between Town Hall and Merrylands, Mr Qurban Ali Hussein, his wife and two young children were subjected by another passenger to a torrent of abuse, including comments such as "go back to Afghanistan" and "all Muslims are terrorists". According to Mr Hussein, when the train pulled into Granville train station he confronted his attacker who alighted from the train. He claimed that when he asked for assistance from the "signal operator" (by which he meant the station assistant) who was standing on the platform immediately outside the door of the train carriage, the operator said in a loud voice "the police are upstairs". On hearing this, the abuser returned to the train and continued to abuse and threaten Mr Hussein and his family. Mr Hussein claimed that he then asked the "signal operator" to wait to enable him and his family to alight from the train. Mr Hussein claims that the "signal operator" then put his hand to his chest, pushed him back into the train and signalled to the driver to move on. 2. The abuse continued and Mr Hussein and his family alighted at the next station, Merrylands. Mr Hussein claims that after taking his distressed family home, he returned to Granville train station and reported the incident to a person who introduced himself as Aman, and whom he understood to be the station master. According to Mr Hussein, when he reported the incident, Aman did not look concerned and stated that the "signal operator" did not have "authority to stop the train". Mr Hussein also claims that Aman told him that the incident was not Sydney Trains' responsibility and to report it to the police. He did, however, give Mr Hussein a Sydney Trains' phone number to report the incident. A couple of days later Mr Hussein rang that number and reported the incident. 3. In a complaint lodged in March 2019 with the President of the NSW Anti-Discrimination Board (the President), Mr Hussein described the incident and alleged that Sydney Trains had discriminated against him on the grounds of race in the area of services (the Complaint). In addition, he claimed that he had not received a response to his complaint made to Sydney Trains some 11 months earlier. After investigating and attempting to conciliate without success, the President referred the Complaint to the Civil and Administrative Tribunal of NSW (NCAT). 4. The Tribunal (differently constituted) made directions listing the Complaint for hearing and requiring the parties to file and serve material, including Points of Claim and Points of Defence. After receiving Mr Hussein's material, Sydney Trains made an application under s 102 of the Anti-Discrimination Act 1977 (NSW) (the Act) seeking that the Complaint be dismissed on the ground that it is misconceived, lacking in substance and does not disclose a contravention of that Act. 5. For the reasons that follow, I have decided not to dismiss the Complaint. The statutory framework: Tribunal's power to dismiss a complaint 1. Section 102 of the Act provides that the Tribunal may, at any stage in proceedings, dismiss the whole or any part of a complaint on a ground on which the President may decline the whole or any part of a complaint under ss 92(1)(a)(i) and/or 92(1)(a)(ii). These provisions state: 92 President may decline complaint during investigation (1) If at any stage of the President's investigation of a complaint: (a) the President is satisfied that: (i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or (ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or 1. In Langley v Niland & Anor (1981) 2 NSWLR 104, in relation to a slightly different but analogous statutory context, Hunt J (at 107) commented that the words "misconceived or lacking in substance" referred to the "insufficiency or to the absence of merit of the factual basis for the allegations made in the complaint" rather than to whether the complaint was one within the provisions of the Act at all. See also Margan v University of Technology, Sydney (EOD) [2003] NSWADTAP 65 (Margan) at [9]. In these proceedings I will take the term "lacking in substance" to mean a complaint which is "not reasonably arguable" (Owners Corporation of Strata Plan 4521 v Zouk [2007] NSWCA 23 at [45]; BDK v Department of Education and Communities [2015] NSWCATAP 129 at [63]; Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at [22]) and the term "misconceived" to mean a "misunderstanding of legal principle" (Alchin v Rail Corporation NSW [2012] NSWADT 142 (Alchin) at [26]). 2. Consistent with the approach taken by the NCAT and one of its predecessor tribunals, the NSW Administrative Decisions Tribunal (ADT), in deciding whether to exercise the power to summarily dismiss the Complaint, I have taken the facts on which Mr Hussein relies at their highest: Kitoko v Sydney Local Health District [2018] NSWCATAP 38 at [41]; Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 at [27]; Alchin at [19]-[26]. Statutory framework: complaint of discrimination on the ground of race in the area of services 1. Section 19 of the Act makes it unlawful for a person to discriminate against another person on the grounds of race: 19 Provision of goods and services It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on the ground of race – (a) by refusing to provide the person with those goods or services, or (b) in the terms on which the other person is provided with those goods or services. 1. Services is defined by s 4 of the Act to include: (a) services relating to banking, insurance and the provision of grants, loans, credit or finance, (b) services relating to entertainment, recreation or refreshment, (c) services relating to transport or travel, (d) services of any profession or trade, (e) services provided by a council or public authority, (f) services consisting of access to, and the use of any facilities in, any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not. 1. Discrimination on the grounds of race is defined by s 7 of the Act to mean: 7 What constitutes discrimination on the ground of race (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of race if the perpetrator-- (a) on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, 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 … (2) For the purposes of subsection (1) (a) and (b), something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race. Grounds for dismissal 1. Sydney Trains largely accepts Mr Hussein's account of the incident on 21 April 2018. It contends, however, that the conduct about which Mr Hussein complains does not disclose a contravention of s 19 of the Act because Mr Hussein failed: 1. to identify in his Points of Claim any service Sydney Trains is alleged to have refused to provide him, or to have provided him on discriminatory terms; and 2. to provide any material to support the contentions that he was subjected to less favourable treatment and that one of the reasons for that treatment was his race. Points of Claim 1. Before examining these contentions, I make some general observations about the Points of Claim and material filed by Mr Hussein in support of the Complaint. 2. As Sydney Trains points out, the Points of Claim are defective in a number of material respects. They are in narrative form and express dissatisfaction with the actions of Sydney Trains and its employees. Among other things, they fail to identify the service which Sydney Trains is said to have refused to provide to Mr Hussein or to have provided to him on discriminatory terms. In addition, they do not particularise the facts on which he relies to establish each of the elements necessary to support his claim of discrimination on the grounds of race. 3. That the Points of Claim fall short of what might be expected of a reasonably competent legal practitioner is unremarkable given that Mr Hussein is self-represented and is apparently not legally trained. 4. In determining Sydney Trains' dismissal application, the statutory context which governs the Tribunal's procedures is relevant. The Tribunal is instructed to act "according to … the substantial merits of the case without regard to technicalities or legal forms": s 38(4) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). The guiding principle of that Act requires the Tribunal to "facilitate the just, quick and cheap resolution of the real issues in the proceedings": s 36(1) of the NCAT Act. Also relevant is that it is an object of that Act "to ensure that the Tribunal is accessible and responsive the needs of all its users": s 3(c). 5. Given this statutory context, in particular, the instruction to have regard to the substantial merits of the case, it would not be appropriate to place undue emphasis on asserted defects in the Points of Claim prepared by a self-represented party in evaluating whether to exercise the power to dismiss the Complaint. Rather, the proper approach is to have regard to all the available material, including the report prepared by the President and provided to NCAT as required by s 94A(2) of the Act, and the submissions made by the parties. Only then can it be determined whether Sydney Trains has clearly demonstrated that the Complaint is misconceived, lacking in substance and/or does not disclose a contravention of the Act. 6. The authorities have repeatedly instructed, that the Tribunal's power to dismiss a complaint referred by the President under the Act, must be exercised with caution: Seventh Day Adventist Church (North NSW Conference) Ltd v Seupule-Feau [2016] NSWCATAP 256 at [24]; Margan at [15]. That approach is consistent with the High Court's admonition that a party should not be denied the right to prosecute a claim unless it is clearly demonstrated that there is no arguable cause of action: see General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 at 129, per Barwick CJ; [1964] HCA 69; and Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91, per Dixon J; [1949] HCA 1. Purported failure to identify the subject service 1. Sydney Trains contends that the Points of Claim fail to specify any service Sydney Trains or its employees refused to provide Mr Hussein or provided to him on discriminatory terms. It asserts that there has been no relevant refusal of services. Sydney Trains provided Mr Hussein and his family with transport services. Nor, contends Sydney Trains, was Mr Hussein provided transport services on discriminatory terms, pointing out he was provided those services on the same terms, such as price, as other passengers. Sydney Trains contends that the Complaint does not involve the provision of services. Rather it involves the particular conduct of one of its employees which "cannot constitute a service as contemplated by [s 19]". Meaning of "services" in s 19 of the Act 1. To establish a contravention of the Act, as a first step Mr Hussein must establish that the conduct about which he complains falls within one or more substantive provisions of the Act. As explained by Basten JA in Commissioner of Police v Mohamed [2009] NSWCA 432 (Mohamed) at [23], the underlying structure of the Act is "not to prohibit all forms of discriminatory conduct, even where such conduct is antithetical to internationally recognised human rights and fundamental freedoms, but to identify specific grounds of discrimination, which are prohibited in specific areas of social activity." 2. Courts and Tribunals within Australia have consistently given a broad meaning to the term 'services' in the context of anti-discrimination legislation. The meaning of that term has been considered by the High Court in Waters v Public Transport Corporation (1991) 173 CLR 349; [1991] HCA 49 and IW v City of Perth (1997) 191 CLR 1; [1997] HCA 30; by the NSW Court of Appeal in Mohamed; by the NSW Supreme Court in Director-General, Department of Community Services and Anor [2003] NSWSC 1241 and Commissioner of Police, NSW Police Service v Estate Edward John Russell & Ors [2001] NSWSC 745; by Appeal Panels of the ADT in Commissioner of Corrective Services v Dezfouli [2008] NSWADTAP 85; State of NSW (NSW Police Force) v Whitfield (EOD) [2012] NSWADTAP 27; and by an Appeal Panel of NCAT in State of New South Wales v Whiteoak [2014] NSWCATAP 99. 3. In IW, among other questions the High Court considered was the question whether the refusal of planning approval was a refusal to provide services in the context of the Equal Opportunity Act 1984 (WA). It is unnecessary to analyse that decision at length. It is, however, helpful to note some of the ways the Court defined 'services' and also to note that the legislative context itself is of critical significance in reaching an appropriate definition or construction of a relevant statutory phrase. 4. Brennan and McHugh JJ said (at 11): The term "services" has a wide meaning. The Macquarie Dictionary relevantly defines it to include "an act of helpful activity"; "the providing or a provider of some accommodation required by the public, as messengers, telegraphs, telephones, or conveyance"; "the organised system of apparatus, appliances, employees, etc., for supplying some accommodation required by the public"; "the supplying or the supplier of water, gas, or the like to the public"; and "the duty or work of public servants". But wide as the definition is, in our opinion it is not capable of including a refusal to exercise the statutory discretion provided for by the Town Planning and Development Act 1928 (WA) and Clause 40 of the City of Perth City Planning Scheme to approve the use of premises for use other than as a shop. 1. Gummow J said (at 41): The term "service" and its variants are of wide and varied meaning. One speaks of the duties or work of a public servant, being a person serving the state or the community in a particular capacity. Service may also be rendered to an individual by conduct tending to the welfare or advantage of that person. 1. Kirby J stated (at 69-70): The Macquarie Dictionary defines "service" as meaning "an act of helpful activity"; "the supplying ... of any ... activities, etc., required or demanded"; "the providing ... of some accommodation required by the public, as messengers, telegraphs, telephones, or conveyance"; "the organised system of apparatus, appliances, employees, etc., for supplying some accommodation required by the public"; "the supplying ... of water, gas, or the like to the public"; and "the performance of any duties or work for another". The Oxford English Dictionary is to like effect: "work done to meet some general need"; "the action of serving, helping or benefiting"; "conduct tending to the welfare or advantage of another". The concept of "services" is therefore an extremely wide one. It is by no means confined to the provision of tangible things. Its meaning is to be derived from the context. In a complaint of discrimination in relation to the provision or refusal of "services", this Court has already emphasised the importance of identifying the relevant "services" in sufficiently concrete terms to enable the decision-maker to determine whether or not there has been the unlawful refusal to provide the "services" as alleged. Yet characterising the "service" in question can itself involve the acceptance of a definition which will effectively determine the complaint of discrimination according to whether a wide or narrow focus is adopted. The word should be given its meaning in the context, and for the purposes, of the legislation in question. 1. As the above passages reveal, the High Court did not endorse a single definition of the term 'services'. However, there is agreement that a critical first step in determining whether a person has been refused a service or provided a service on discriminatory terms is the proper characterisation of the relevant service. McHugh J in Waters emphasised (at 404–405) the need to identify the subject service with 'sufficient precision': Accordingly, the goods or services which must be identified are those goods or services which are relevant to the complainant or any person or persons whom the complainant represents. Before there can be a finding of discrimination by a person in relation to the provision of goods or services, therefore, the relevant goods or services must be identified with sufficient precision to relate them to the facts of the case and the issues which arise for determination. If a person is alleged to have refused to perform services, e.g. the services in question must be identified in sufficiently concrete terms to enable the Board to determine whether or not there has been a refusal to perform those services. What is a sufficiently precise identification of the service in one case may be too general in another. If the discrimination alleged was the refusal to allow impaired persons to travel on trams to St Kilda, it would be meaningless to identify the service provided as "the public transport system". If, however, the discrimination alleged was the refusal to allow impaired persons to travel on trams generally, "transportation of members of the public by trams" might identify the service with sufficient precision to enable the relevant issues to be resolved. 1. That view was endorsed by Brennan CJ and McHugh J in IW (at 16-17): In determining whether a person has refused to provide a service within the meaning of the Act, it is necessary to identify with precision what service has allegedly been refused to that person and what service or services the alleged discriminator provides. Consideration 1. In a letter to the Board dated 6 June 2019 general counsel for Sydney Trains, Ms Miller outlined the procedures required to be followed by station staff: Sydney Trains' procedures for station staff, applicable as at April 2018, allow station staff to stop a train if necessary, and also to give clearance for trains to depart. The first rule of this procedure (and the basis upon which the clearance or stop is given) is that passengers have left or boarded the train safely. 1. Ms Miller stated that the incident described by Mr Hussein of being pushed back into the train is "not a form of passenger management that is either instructed or condoned by Sydney Trains". Ms Miller went on to write that the incident described by Mr Hussein "though not unlawful discrimination … would constitute a breach of Sydney Trains policies and procedures and would result in regrettable customer service". 2. While there is no direct evidence, in my view it is arguable that the role of "signal operators" extends to providing assistance to passengers on request, especially when observed to be distressed and/or at risk of harm. 3. Here, according to Mr Hussein, the "signal operator" observed him and his young family being verbally abused by another passenger. In addition, on his account, the "signal operator" observed him seeking to disembark the train to escape the abuse and prevented him from doing so. 4. A review of the cases listed at [21] above reveal that the identification of the subject services for the purpose of s 19 of the Act, is often a difficult task. This case is no exception. While Mr Hussein has failed to identify the nature and type of service, he alleges the "signal operator" refused to provide him, or provided to him on discriminatory terms, the subject matter of the Complaint is clear. Mr Hussein is complaining about not being provided with assistance and being prevented from disembarking the train. 5. While not directly analogous, the Court of Appeal decision in Mohamed provides useful guidance as to the identification and formulation of services. Mohamed involved a complaint made under the Act referred by the President to the ADT. The complainant and her family reported to police that that they were abused and assaulted by members of a neighbouring family. The family alleged that after reporting the matter to police, the police officers to whom their report had been referred failed to take their complaint seriously and took no action against those said to have been responsible for the abuse and assaults. 6. An Appeal Panel of the ADT referred for the opinion of the Court of Appeal, several questions of law, which in broad terms related to the question of whether the conduct of the police officers about which the Mohameds complained could be characterised as "services". In answer to the question, "Is the investigation of an alleged criminal offence by members of the New South Wales Police Force a "service" within the meaning of s 19 of the Anti-Discrimination Act 1977 (NSW)?", the Court (Spigelman CJ, Basten JA) stated: Conduct of police officers with respect to a request for assistance in relation to possible criminal activity, where protection of persons or property may be required, can involve the refusal or provision of "services" for the purposes of s 19 of the Anti-Discrimination Act. 1. Mohamed does not stand for the proposition that the conduct of employees of government agencies, in response to a request for assistance, will always involve the provision or refusal of services for the purpose of the Act. Nonetheless, it lends support to the contention that the conduct of the "signal operator" about which Mr Hussein complained is capable of being characterised as "services". 2. No authority has been cited for the proposition advanced by Sydney Trains that because the subject matter of Mr Hussein's complaint relates to the conduct of a particular employee it cannot be characterised as "services". Indeed, that proposition is at odds with the decision of Mohamed. Many of the services provided by Sydney Trains to members of the public, such as the sale of tickets, the provision of information or other forms of assistance, will be provided by individual employees. Station staff are not operating small businesses on their own accounts – they are employees of Sydney Trains and it is through their agency that Sydney Trains provides various services. 3. Finally, I reject the argument made by Sydney Trains that because Mr Hussein and his family were provided with transport services it is not reasonably arguable that he was refused services. While the primary service provided by Sydney Trains, transport is not the only type of service it provides. Sydney Trains provides a range of associated services to passengers and members of the public, relating to ticketing, provision of information, lost property, meals and refreshments, bathroom facilities and so on. 4. In my view, it is arguable that the subject service could be characterised as the conduct of the "signal operator" with respect to Mr Hussein's request for assistance by Mr Hussein, or, to use the term used by Ms Miller, "passenger management" services. For convenience in these reasons, I will refer to these as "assistance services". I am not persuaded that it is not reasonably arguable that the conduct of the "signal operator" with respect to Mr Hussein's request for assistance is capable of being characterised as "services" for the purpose of s 19 of the Act. No evidence of a refusal to provide Mr Hussein with services 1. Sydney Trains, citing in support, Kitoko v Sydney Local Health District [2017] NSWCATAD 209 at [37], contends that even if the conduct about which Mr Hussein complains is capable of being characterised as services, it falls outside the scope of s 19(a) of the Act because at best it would amount to a failure to provide, not a refusal to provide services. 2. Whether the "signal operator" refused or failed to provide assistance services is a question of fact. A difficulty arises in these proceedings in that apparently neither party has been able to identify the subject "signal operator". In the letter dated 6 June 2019 referred to at [28] above, Ms Miller wrote: [T]here is no mention in the Station Diary of the station staff who flags trains or a '"signal operator". No staff members present at Granville stations had a recollection of the incident as recounted by [Mr Hussein]. 1. No further material has been provided by Sydney Trains about the steps taken to identify the "signal operator". 2. Sydney Trains appears to contend that because Mr Hussein cannot point to any supporting material to support the claim that the "signal operator" refused to provide him with services as opposed to failied to provide him with services, that claim is untenable. I am not persuaded that the issue is as clear cut as Sydney Trains contends. 3. To determine that issue, the Tribunal would need to consider all of the available material, make findings of fact about what occurred, and then ask on the basis of the facts found whether the conduct of the "signal operator" could amount to a refusal to provide services. This may well be a matter of inference rather than of direct evidence. 4. Depending on the material, if any, provided by Sydney Trains, the Tribunal might also consider whether it is appropriate to exercise the power to "inquire into and inform itself on any matter" (s 38(2) of the NCAT Act) and/or to "ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue" (s 38(6) of the NCAT Act). 5. At this stage of proceedings, I am not persuaded that the claim that the "signal operator" refused to provide Mr Hussein with services is untenable. No evidence of less favourable treatment and causation 1. If the Tribunal finds that the "signal operator" refused to provide Mr Hussein with assistance services and assuming that the Complaint is cast as "direct discrimination" (s 7(1)(a) of the Act), the Tribunal must proceed to decide whether: 1. A person not of Mr Hussein's race, was or would have been treated more favourably in the same or similar circumstances (less favourable treatment), and 2. One of the reasons for any less favourable treatment was Mr Hussein's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race (causation). Mr Hussein's race 1. Mr Hussein did not identify his race in the material filed in the Tribunal. For current purposes, I will assume but not decide that as the abusive passenger apparently believed, Mr Hussein "national origin" is Afghanistan, and/or his "ethno-religious origin" is Afghani-Muslim. Less favourable treatment 1. Sydney Trains contends that there is no direct or indirect evidence, to support findings of less favourable treatment and causation. 2. In Purvis v New South Wales (2003) 217 CLR 92; [2003] HCA 62 the High Court (Gummow, Hayne and Heydon JJ) stated that in undertaking the comparison required to determine whether less favourable treatment is established, it is necessary to identify the "circumstances attending the treatment given ... to the [complainant]" namely, "all of the objective features which surround the actual or intended treatment of the [complainant] by the ... 'discriminator'": at [223], [224]. 3. Accordingly, in to determine whether less favourable treatment is established, the Tribunal must: 1. compare the treatment the "signal operator" afforded Mr Hussein with the treatment: 1. the "signal operator" afforded a passenger not of Mr Hussein's race, in the same circumstances or circumstances that are not materially differently to Hussein's circumstances (an actual passenger), or 2. the "signal operator" would probably afford a passenger not of Mr Hussein's race in the same circumstances, or circumstances that are not materially differently to Mr Hussein's circumstances (a hypothetical passenger), and 1. evaluate, whether the treatment the "signal operator" afforded Mr Hussein was objectively less favourable than the treatment he afforded an actual passenger or would probably afford a hypothetical passenger. 1. Mr Hussein has not nominated an actual passenger with whom the treatment about which he complains can be compared. Accordingly, that treatment must be compared with the treatment the "signal operator" would probably afford a hypothetical passenger. To undertake that comparison, as a first step, the objective circumstances surrounding Mr Hussein's treatment must be identified. On the facts as alleged by Mr Hussein, these would include the racial abuse to which he and his young family was subjected, his and his family's apparent distress, the witnessing of that abuse and consequent distress of the Hussein family by the "signal operator", Mr Hussein's request for assistance, and the actions of the "signal operator" in pushing Mr Hussein back into the carriage as he attempted to alight at Granville. 2. As Sydney Trains points out, the Points of Claim do not particularise the basis for the claim that Mr Hussein was subjected to less favourable treatment. Indeed, it would appear that Mr Hussein is unaware that less favourable treatment is a necessary element in a claim of race discrimination. 3. Nonetheless, I am unable to accept the proposition that there is no material which might support a finding of less favourable treatment. As Ms Miller stated in her letter of 6 June 2019, the conduct of the "signal operator" described by Mr Hussein is "not a form of passenger management that is either instructed or condoned by Sydney Trains". Ms Miller went on to write that the incident described by Mr Hussein "though not unlawful discrimination … would constitute a breach of Sydney Trains' policies and procedures and would result in regrettable customer service." 4. Whether this material is sufficient to support a finding of less favourable treatment, is not to the point. At this stage of proceedings. I am not persuaded that there is no material which might support a finding of less favourable treatment. Causation 1. The issue to be determined is not whether Mr Hussein's race was one of the reasons the passenger abused Mr Hussein and his family, rather whether his race was one of the reasons the "signal operator" failed to provide Mr Hussein with assistance services. 2. Sydney Trains points out that the Points of Claim do not particularise the material relied upon by Mr Hussein to support a finding that one of the reasons for any less favourable treatment was his race. While acknowledging that a finding of causation may be made in the absence of direct evidence, citing Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1; Marshall v Prescott [2015] NSWCA 110 at [83], Sydney Trains points out that even if "[t]he circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture". Sydney Trains contends that there is "no evidence" for the reasons for the "signal operator's" alleged less favourable treatment and Mr Hussein's belief, however genuinely held, is insufficient to support an inference being drawn that one of the reasons for that treatment was Mr Hussein's race. 3. Referring to the authorities relating to the drawing of inferences, Sydney Trains points out that to rely on circumstantial evidence to prove causation Mr Hussein must show that the circumstances raise the more probable inference in favour of what is alleged: Flounders v Millar [2007] NSWCA 238 at [35] per Ipp JA, Handley AJA agreeing. 4. There can be no argument that Mr Hussein's belief, however genuinely held, of itself is insufficient to support an inference being drawn that the conduct of the "signal operator" was racially motivated. Nonetheless, it does not follow that there are no objective facts which are capable of supporting that inference being drawn. In determining whether causation is established, the Tribunal would be required to assess the following in combination – the fact that Mr Hussein and his family are apparently Afghanis and that their non-Caucasian appearance was apparently obvious, the contemporaneous complaint by Mr Hussein to the "signal operator" that he and his family were being racially abused on the train, their distress which was likely to have been obvious to an observer in the immediate vicinity, their attempt to alight from the train, and the conduct of the "signal operator" which may be interpreted as a refusal to allow them to do so or to provide assistance in relation to the abusive passenger. 5. Of course, other inferences may be available from the facts as alleged by Mr Hussein. There may even be more plausible explanations but that it not the issue at hand. The inference that Mr Hussein drew from the incident, and which is the foundation of his complaint, is not so improbable or implausible that it should be dismissed out of hand at this stage of proceedings. 6. The submission advanced by Sydney Trains appears to be based on the flawed assumption that the task of distinguishing between permissible inference and conjecture is straightforward. A review of the authorities suggests otherwise. As explained by Spigelman CJ in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [84]-[88], while there is a difference between the two, it can be difficult to distinguish between permissible inference and conjecture: "Characterisation of a reasoning process as one or the other occurs on a continuum in which there is no bright line division". 7. The Tribunal might ultimately find that the causation hypothesis advanced by Mr Hussein is merely conjecture. Nonetheless, in my view at this stage of proceedings it would be premature to dismiss the Complaint on that basis. Conclusion 1. Sydney Trains has failed to clearly demonstrate that at this stage of the proceedings the Complaint is misconceived, lacking in substance and/or does not disclose a contravention of that Act. It follows that the power to dismiss the Complaint cannot be exercised. Orders 1. The application made by Sydney Trains to dismiss the Complaint is refused. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 June 2020