Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Chariyan v Newcastle Quality Constructions Pty Ltd t/as McDonald Jones Homes [2021] NSWCATAD 197 Hearing dates: 27 April 2021 Date of orders: 27 April 2021 Decision date: 12 July 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: M Tibbey, Senior Member Decision: Leave to proceed with the complaint of racial discrimination is refused. Catchwords: HUMAN RIGHTS — discrimination — grounds — racial discrimination — equal opportunity — whether leave should be given — principles applying to grant of leave Legislation Cited: Anti-Discrimination Act 1977 (NSW) Cases Cited: Bassili v The Star Pty Ltd [2016] NSWCATAD 167 Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 Chi v Technical and Further Education Commission (No 3) [2009] NSWADT 271 Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 Hubbard v Roads and Traffic Authority of NSW [2010] NSWADT 99 Jones v Ekermawi [2009] NSWCA 388 Langley v Niland (1981) 2 NSWLR 104 Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 Texts Cited: None cited Category: Procedural rulings Parties: Rumy Chariyan (Applicant) Newcastle Quality Constructions Pty Ltd t/as McDonald Jones Homes (Respondent) Representation: Solicitors: Applicant (self-represented) M Wilde (Respondent) File Number(s): 2021/00088891 Publication restriction: Nil REASONS FOR DECISION Background 1. Mr Rumy Chariyan, who is of Indian background, alleges that he was treated less favourably than other customers of the respondent on the grounds of his race in the provision of goods and services, namely the building of a home for himself and his family and services provided after the home was built. 2. Anti-Discrimination NSW has declined the applicant's complaint as "lacking in substance." The applicant has sought leave to proceed with the complaint in the Tribunal. Statutory framework for seeking leave 1. Section 92 of the Anti-Discrimination Act 1977 (NSW) (referred to here as "the Act") provides (relevantly) that: 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 … the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint. 1. A complaint will be "lacking in substance" if it can be demonstrated that there exists no factual basis for the allegations or that the complaint is "not reasonably arguable": Langley v Niland (1981) 2 NSWLR 104 at 107 and Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at [22]. The Tribunal is obliged to consider the complainant's evidence at its highest. 2. Having received the declination and reasons for it, on 11 March 2021 the complainant sought that his matter be referred to the Tribunal under s 93A of the Act. 3. Section 96 of the Act provides that a complaint referred pursuant to s 93A is not permitted to proceed without the leave of the Tribunal. 4. The Tribunal has considered whether the Tribunal should permit leave for the complainant to proceed with the claim. 5. Section 96(1) of the Act gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones v Ekermawi [2009] NSWCA 388 at [57]; Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [25]. That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant's rights under that scheme: Jones v Ekermawi [2009] NSWCA 388 at [58] and Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [32]. 6. The question of leave involves evaluating whether it is fair or just to grant or refuse leave in the particular circumstances of the case. Again, those two cases, Jones v Ekermawi [2009] NSWCA 388 at [58] and Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143, are cited in support of that proposition. 7. In deciding whether or not to grant leave the Tribunal may have regard to the grounds which the President may take into account in declining a complaint under s 92 of the Act, and as stated in Jones v Ekermawi [2009] NSWCA 388 at [60]. What would the applicant have to prove if the claim were permitted to proceed? Statutory framework Racial discrimination in provision of goods and services 1. Section 7 of the Act makes it unlawful to discriminate against a person on the grounds of race. It provides that: 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. 1. In relation to racial discrimination in the provision of goods and services, s 19 of the Act provides that: 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. What is required in order to establish discrimination? 1. In order to establish a claim of discrimination, the applicant needs to establish that at least one of the reasons he was treated less favourably than others in the same or similar position (sometimes referred to as "differential treatment") was "on the grounds of" his race (sometimes referred to as "the causation question"). 2. In Dutt v Central Coast Area Health Service [2002] NSWADT 133 ("Dutt") at [60]‑[65], the Tribunal discusses how the question of whether or not there has been "less favourable treatment" of the applicant "than others in the same or similar position" where the comparator is a hypothetical comparator, as it is in this case. This case is similar to Dutt in that, as stated in Dutt: "[63] … The only fact that it is possible to determine is the ground or grounds on which the applicant was actually refused service. Only when this is known can we say whether a hypothetical comparator would have been refused service in the same circumstances. The applicant could, for example, have been refused service on perverse or irrational grounds, or solely on a ground unrelated to race: it is not until the ground for the actual treatment is known that it is possible to say whether a hypothetical person not of the applicant's race would have been treated differently." 1. The words "on the grounds of" have been paraphrased as "because of", "due to," or "a real" reason, a "genuine" reason or "true" reason for the treatment alleged to have been discriminatory: see Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [28]. 2. A person may also experience indirect racial discrimination if a requirement operates differentially on a person of a different race. That will also constitute indirect racial discrimination. That was not alleged in this case. 3. The applicant bears the onus of proof that he was treated less favourably "on the grounds of", "because of" or "due" (at least in part) to his race: see Hubbard v Roads and Traffic Authority of NSW [2010] NSWADT 99 at [56]. 4. If there is no actual comparator with whom to compare the applicant, then a hypothetical comparator may be considered: see Dutt at [59]‑[65]; Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5; Bassili v The Star Pty Ltd [2016] NSWCATAD 167 at [23]. 5. It is not the case that because a person is of a particular race and experiences something he or she perceives as "adverse" to him/herself, that the conduct is discriminatory simply because the person is of that race. The person needs to prove on the civil standard that the conduct impugned occurred "on the ground of", "due to" or "because of" the race of the person or that was one of the reasons for the conduct. To put it another way, the applicant is required to prove that a real reason, or the real reason, for the conduct impugned is the race of the person. What if an allegedly discriminatory act is done for more than one reason? 1. Section 4A of the Act provides that: 4A Act done because of unlawful discrimination and for other reasons If— (a) an act is done for 2 or more reasons, and (b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of this Act, the act is taken to be done for that reason. Why did Anti-Discrimination NSW decline the complaint? 1. The reasons set out in the report of the President of Anti-Discrimination NSW (referred to here as the "President's Report") for the declining of the complaint on 10 March 2021 pursuant to s 92(1)(a)(i) as "lacking in substance" are stated as follows: 1. The complainant has not established that he was subjected to any less favourable treatment by the respondent on the grounds of his race, or at all; 2. The complainant has not established that he has been denied a service or provided with a service on less favourable terms because of his race. Rather, any restriction on the delivery of a service was a consequence of the complainant's own behaviour towards the respondent; 3. The respondent has established that it has taken positive action to understand the complainant's grievances and take remedial action. This includes initiating the assistance of NSW Fair Trading to assist the complainant to articulate his grievances and rectifying the issues identified by it. 1. On 11 March 2021 the complainant sought referral of his complaint to the NSW Civil and Administrative Tribunal. Consideration of whether the complaint is lacking in substance 1. Anti-Discrimination NSW has accepted the complaint as it relates to conduct between 22 June 2020 and 3 October 2020. Section 89B of the Act provides that 89B Acceptance or declining of complaints by the President (1) The President is to determine whether or not a complaint made to the President is to be accepted or declined, in whole or in part. (2) The President may decline a complaint if— (a) no part of the conduct complained of could amount to a contravention of a provision of this Act or the regulations, or (b) the whole or part of the conduct complained of occurred more than 12 months before the making of the complaint, or (c) the conduct complained of could amount to a contravention of a provision of this Act for which a specific penalty is imposed, or (d) in the case of a vilification complaint, it fails to satisfy the requirements of section 88, or (e) the President is not satisfied that the complaint was made by or on behalf of the complainant named in the complaint. (3) The President is to give notice of a decision to accept or decline a complaint to— (a) the person who made the complaint, and (b) if the respondent has been given notice of the complaint, the respondent, so far as is reasonably practicable, within 28 days after the decision is made. (4) A decision under this section to decline a complaint in whole or in part is not reviewable by the Tribunal. 1. The Tribunal has reviewed the President's Report which contains all of the written material from both parties that was before Anti-Discrimination NSW when it made its decision. 2. It was apparent from the President's Report that the conduct complained of spans a lengthy period, from approximately 15 March 2019 to 6 March 2020, ranging from alleged conduct during the tender by a sales consultant, through the construction period, after handover of the keys to the home on 13 August 2019 and through to the meeting on-site with NSW Fair Trading on 5 March 2020. 3. Anti-Discrimination NSW has not accepted the complaint for that period of time, but rather a much shorter period, 22 June 2020 to 3 October 2020. The reasons for choosing that period are not articulated in the declination decision. Nevertheless, the period for which to accept the complaint is a decision of Anti-Discrimination NSW that is not reviewable by the Tribunal, as set out in s 89B(4) above. 4. Thus, any conduct that occurred outside of that period accepted by Anti-Discrimination NSW does not fall within the terms of the complaint as accepted by Anti-Discrimination NSW and cannot therefore be considered by the Tribunal. 5. The complaint was lodged with Anti-Discrimination NSW on 22 February 2020, with further information received on 22 and 23 April 2020, 15 June 2020 and 3 October 2020. A review of the complaint indicates that the complainant is of the view that he and his family were treated "roughly and rudely" by the sales consultant and were denied various pieces of information and various services that were made available to others. 6. On 22 September 2020 Anti-Discrimination NSW sought greater specificity in the dates of the alleged conduct, asking by letter: "What is the timeframe of your complaint including specific dates? You mention 'last 2.5 years', but we need specific dates of events of alleged discrimination. If there are events older than 12 months, please explain why you have not complained to us earlier". 1. The applicant responded to this letter on 3 October, but not with any further very specific information. 2. During the oral hearing of the application for leave to proceed in the Tribunal, a number of questions were asked of the applicant that was designed to elicit any more specific information. Although the applicant appeared to be using his best endeavours to respond, the Tribunal was unable to determine precisely what occurred on specific dates that gave rise to the complaint, which was very generalised. It was clear however that much of the conduct complained of fell outside the period accepted by Anti-Discrimination NSW as being the period of the complaint, as much of it occurred during the sales period, pre-construction, during construction and prior to handover of the keys to the property, which was said to have occurred on 13 August 2019. 3. The Tribunal is obliged to determine the leave application on the basis of the evidence before it. That evidence consists of assertions by the applicant. These are unsupported by any written documents (such as, for example an email exchange in which the respondent replied roughly or rudely to the applicant) evidencing the conduct complained of. There is no specifically dated evidence, within the complaint period, advanced by the applicant. Further, there are no witness statements by any other family members or others in support of allegations of treatment that was less favourable to the applicant than to others because of his race. 4. There is no comparative evidence that is specific that could show where, within the complaint period, the applicant was treated less favourably than others. Nor is there any evidence that is specific, beyond generalised assertion, setting out what was said and done on specified occasions, that shows that such treatment was accorded to him because of, or "on the ground of," his race. In other words, even if he was treated rudely (which is denied by the respondent and which the Tribunal cannot determine), it is still necessary to show that this was due to his race or that his race was one of the reasons he was treated rudely and less favourably than those of a different race. This could be demonstrated if, for example, racially-tinged words were used or if an inference could be drawn from all the surrounding circumstances that the applicant was treated less favourably "on the ground of" race. On the information before the Tribunal, the evidence does not rise that high. 5. Considering the evidence at its highest, there is insufficient evidence beyond generalised assertion to support this claim within the complaint period, 22 June 2020 to 3 October 2020. This is important to consider, as the applicant bears the burden of proving the claim on the civil standard, that is, on the balance of probabilities. 6. The respondent has provided a plausible and cogent response to the conduct issues identified and took initiative to have the dispute between the parties dealt with through the involvement of NSW Fair Trading. 7. The parties agreed that the respondent notified NSW Fair Trading of a dispute between the parties. The applicant refers to this as "They put complaint against me in fair and trading [sic]." The respondent characterised it as an attempt to have the complainant articulate what the alleged defects in the property were and to have them rectified. The Tribunal accepts that there was an on-site inspection/mediation on 5 March 2020 and a rectification order was issued by NSW Fair Trading on 6 March 2020 for "defective work" that was required to be remedied in a number of respects. This appears to have been an effective intervention by the respondent that would have resulted in action to remedy identified building-related issues. It did not occur within the period accepted by Anti-Discrimination NSW as being the period of the complaint. 8. The applicant also refers to a "harassment complaint in police station Wyong" made against him, but there is no detail before the Tribunal as to what this refers to. Conclusion 1. On the information that has been provided, the vagueness and lack of specificity of the complaint within the complaint period is such that the complaint is not reasonably arguable or likely to succeed, even considering the evidence of the applicant at its highest. 2. From the oral argument at the leave hearing and having regard to all of the written material that is before the Tribunal in the President's Report, the Tribunal is not satisfied that the applicant has provided evidence sufficient to establish that it would be fair or just for the complaint to be permitted to proceed. 3. The Tribunal therefore declines leave for the complaint to proceed. Orders 1. Leave to proceed with the complaint of racial discrimination 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: 12 July 2021