Miles Whippy v Never Stop Water Pty Ltd [2021] NSWCATAD 216

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Miles Whippy v Never Stop Water Pty Ltd [2021] NSWCATAD 216 Hearing dates: 7 July 2021 Date of orders: 26 July 2021 Decision date: 26 July 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: C Mulvey, Senior Member Decision: Leave for the complaint against Never Stop Water Pty Limited to proceed is refused. Catchwords: HUMAN RIGHTS — equal opportunity — whether leave required for complaint to proceed — principles applying to grant of leave Legislation Cited: Anti-Discrimination Act 1977 (NSW) Cases Cited: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Jones & Anor v Ekermawi [2009] NSWCA 388 Category: Principal judgment Parties: Miles Whippy – Applicant Never Stop Water Pty Ltd - Respondent Representation: Mr Miles Whippy – In person Mr Luke Smith – Director of the Respondent File Number(s): 2021/00151521 Publication restriction: None

REASONS FOR DECISION 1. On 13 May 2020, Miles Whippy was in Kirribilli, NSW and walked past three men leaning against a utility truck bearing the name 'Never Stop Water' a company logo of the respondent Never Stop Water P/L. The Three men also had corresponding logos identifying the respondent company on their clothing. 2. He alleged that one of the men said "Ay, Rastafarian monkey" and all three men laughed. He asked them to repeat what was said and one of the men replied, "I was just saying that I have a friend and whenever he sees someone with dreadlocks, he says, 'ay Rastafarian man'". 3. As Mr Whippy left the scene, the three men are alleged to have all laughed hysterically. Mr Whippy documented their details, he recorded the utility truck on his mobile telephone and called one of the men a "racist clown". He said he would see them in court. 4. Mr Whippy identifies as an Australian Pacific Islander whose family reside in Fiji. He has grown his hair in dreadlocks which he says is part of the Fijian culture. 5. In March 2021, Mr Whippy lodged a complaint with the President of the Anti-Discrimination Board (respectively, "the President" and "the Board"), alleging the matters is paragraphs [2]-[3] above. 6. The President received an amended complaint on 22 March 2021 referring to the use of a white 'OK' symbol which has been used as a racist symbol. However, in oral submissions Mr Whippy said this was not a complaint nor part of his claim. I have disregarded it. 7. The President declined the complaint of race discrimination under s 89B(2)(a) of the Anti-Discrimination Act 1977 (NSW) (the Act) because Mr Whippy had not shown that the conduct complained of occurred in any area of public life. 8. The President accepted the complaint of racial vilification under s 89B of the Act in relation to alleged events which occurred on 13 May 2020 regarding the conduct of employees of Never Stop Water. After investigating these allegations, the President decided to decline the complaint of racial vilification pursuant to s 92(1)(v) of the Act on the basis that the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body. The reasons provided by the President include Mr Whippy providing information that an attempt to resolve the complaint, by conciliation, was before the Australian Human Rights Commission (AHRC). 9. At Mr Whippy' request on 26 March 2021, the President referred the complaint to the NSW Civil and Administrative Tribunal (NCAT) as required by s 93A of the Act. 10. Because the President has exercised the discretion to decline the complaint, Mr Whippy cannot proceed without leave of the Tribunal: s 96(1) of the Act. Mr Whippy urges the Tribunal to grant leave. Never Stop Water, on the other hand, agrees with the finding made by the President and opposes leave being granted. 11. For the reasons that follow, I have decided to refuse leave for the complaint to proceed against Never Stop Water.