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. Statutory framework and principles governing the grant of leave 1. A decision by the President to decline a complaint under s 89B of the Act is not reviewable by this Tribunal (see – s 89B(4) of the Act). It follows that the decision of the President to decline the complaint as it relates to allegations of race discrimination is not before me for consideration. 2. Where the President decides to accept a complaint under s 89B, he or she must investigate that complaint: s 90(1) of the Act. If the President is satisfied, that the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body: s 92(1)(v) of the Act, the President can exercise a discretion to decline the complaint. It is this decision which I have jurisdiction to review. 3. Where, as here, the President declines a complaint under s 92 of the Act, the President must refer the complaint to the Tribunal if he or she has received a written request from the complainant to do so: s 93A of the Act. 4. Where a complaint is referred to the Tribunal at the request of a complainant under s 93A(1), that complaint may not be the subject of proceedings before the Tribunal without the leave of the Tribunal: s 96(1) of the Act. 5. Section 96(1) gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones & Anor v Ekermawi [2009] NSWCA 388 at [58] (Jones); Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25] (Ekermawi). 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 at [57]; Ekermawi at [32]. The question of leave involves evaluating whether it is "fair and just" to grant or refuse leave in the particular circumstances of the case: Ekermawi at [36], [37]; Jones at [58]. In deciding whether 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: Jones at [60]. Background facts 1. Mr Whippy has provided an unsworn Affidavit dated 29 June 2021 in support of his application. He recites the complaints as set out above in paragraphs [2]-[3] which he says evidences racial vilification. Mr Whippy also refers to a document signed by Mr Luke Smith, Director of Never Stop Water in response to an investigation that was made under Commonwealth legislation by him to the AHRC. 2. In response to the complaints, Mr Smith in a submission dated 5 May 2021 to the AHRC contends the following. 3. During the morning of 13 May 2020, Never Stop employees were huddled around a company work car waiting, waiting for their morning coffee and engaging in a conversation. As Mr Whippy passed the Never Stop the Respondent's vehicle one of the employees stated, 'whenever a mate of mine sees someone with dreadlocks, he always says 'hey Rastafarian man''. The Respondent denies that its employee said the words 'Rastafarian monkey'. 4. Mr Smith contends that the comments were not aimed or directed at Mr Whippy but rather words said in a private conversation which Mr Whippy overheard. Mr Smith said that at no stage did the employees advance or make any physical threats to Mr Whippy, they were not violent or abusive and remained by the company vehicle during the interaction. My consideration 1. Mr Whippy does not contend that he did not make an application before the AHRC. Indeed, there is ample evidence that he did. Mr Whippy may not have achieved the desired result after making that complaint. However, the provision in s92(1)(v) of the Act gives the President a wide discretion to decline a complaint where the subject matter has been, is being, or should be, dealt with by another person or body. Clearly, the subject matter of this part of Mr Whippy's complaint had been considered by the AHRC and was attempted to be resolved by conciliation. Given that Mr Whippy decided to have the matter dealt with in Federal jurisdiction, which governing legislation is similar to the Act, I find it is not fair and just to re-litigate the matter in this jurisdiction. I consider it fair and just to refuse leave because it has been dealt with by the AHRC. 2. It is also worth noting that a claim of racial vilification under s20C 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 person or group of persons on the ground of the race of the person or members of the group. 1. Relevantly, a public act is defined by s20B as: In this Division, "public act" includes— (a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and … 1. In my view the claim and the available evidence is lacking in substance. It does not establish that Mr Whippy has an arguable case to prove that the alleged conduct of Never Stop Water employees' would meet the threshold of inciting hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group. 2. Leave to proceed is refused. Order 1. Leave for the complaint against Never Stop Waste Pty Limited to proceed 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: 26 July 2021