CITATION: Sasterawan v SSS Electronics Pty Ltd [2006] NSWADT 140 DIVISION: Equal Opportunity Division APPLICANT PARTIES: Wahyu Sasterawan RESPONDENT SSS Electronics Pty Limited FILE NUMBER: 051152 HEARING DATES: 27/02/06 SUBMISSIONS CLOSED: 02/27/2006 DATE OF DECISION: 05/11/2006 BEFORE: Hennessy N - Magistrate (Deputy President) CATCHWORDS: Application for leave to proceed MATTER FOR DECISION: Preliminary matter LEGISLATION CITED : Anti-Discrimination Act 1977 CASES CITED: Turner v State Transit Authority & anor [2004] NSWADT 89 Xu v Sydney West Area Health Service [2006] NSWADT 3 APPLICANT In person REPRESENTATION: RESPONDENT T Perri, agent ORDERS: Leave is refused. REASONS FOR DECISION Introduction 1 Mr Sasterawan is asking for the Tribunal's permission to go ahead with a complaint of race discrimination against SSS Electronics Pty Ltd (SSS). The President of the Anti-Discrimination Board declined the complaint as lacking in substance. When the President declines a complaint as lacking in substance, s 96 of the Anti-Discrimination Act 1977 (AD Act) requires the applicant to obtain the Tribunal's permission before the complaint can go ahead. 2 Mr Sasterawan's complaint is that employees of SSS discriminated against him on the ground of his race by making racist comments to him on the phone. Mr Sasterawan had taken his video cassette recorder (VCR) to SSS for repair on several occasions. A dispute arose about whether his warranty covered the damage to his VCR. The main allegation of discrimination relates to an alleged phone call with an employee of SSS on 6 September 2004. Mr Sasterawan alleged that an employee said to him, words to the effect of: "If you want back your VCR then go back to India" and "Are you now ready to kiss my ass little black Indian?" 3 Mr Sasterawan says that he then spoke to the manager who said he was well aware of everything the employee had said, that she was right to have made those comments and that Mr Sasterawan deserved to be spoken to in that way. Mr Sasterawan said that the manager told him that, "We make the rules for our desire to satisfy ourselves." SSS denies that words to that effect were ever spoken to Mr Sasterawan. Evidence in support of the denial were computer records of job cards which show that Mr Sasterawan did not have a phone conversation with an employee on 6 September 2004. Mr Sasterawan says that those documents were fraudulent. Legal principles 4 In Xu v Sydney West Area Health Service [2006] NSWADT 3 at [18], the Tribunal set out the legal principles applicable when determining whether or not to grant leave for a complaint to proceed: 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. Relevant legislative provisions 5 Section 19 of that AD Act 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 Discrimination is defined in s 7 in the following terms: (1) 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 (b) segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or (c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have such a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (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. 7 Even if the Tribunal were satisfied that the employee and the manager made the comments they are alleged to have made, at least two substantive legal issues would arise if this case proceeded to hearing. The first is whether SSS has discriminated against Mr Sasterawan by treating him less favourably "on the ground of" his race. The second is whether SSS discriminated against him in the terms and conditions on which the service was provided, or merely in relation to the manner in which the service was provided. On the ground of race 8 Under s 7 of the AD Act, a service provider will have discriminated against a person if, "on the ground of the aggrieved person's race" the service provider has treated 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". The difficulty for Mr Sasterawan in proving this element of his complaint is that the comments he says were made to him assume that his nationality is Indian, whereas Mr Sasterawan told the Tribunal that his nationality is Indonesian. We are not aware of any authority for the proposition that discrimination on the ground of a race that is not the aggrieved person's race, is nevertheless in breach of the AD Act. Terms and conditions 9 Mr Sasterawan would also have to prove that he was discriminated against in the terms on which SSS provided him with a service. The Tribunal dealt with an analogous situation in Turner v State Transit Authority & anor [2004] NSWADT 89. That case concerned a transgender person who complained of discrimination in relation to comments made by a bus driver when she boarded the bus. One of the key questions for the Tribunal if this matter went to hearing would be whether SSS discriminated against the Mr Sasterawan on the grounds of his race in the terms on which it provided repair services to him. 10 There is no doubt that SSS provides "services" to members of the public and that those services are the kind of services covered by the AD Act. However, this is a complaint about the manner in which that service was provided, not about the terms on which those services were provided. In accordance with the reasoning in Turner v State Transit Authority, a complaint about the manner in which services are provided is unlikely to be in breach of the AD Act. Conclusion 11 Even if Mr Sasterawan could prove that the allegedly racist comments were made, there are two significant legal impediments to the success of his complaint. In my view, Mr Sasterawan's complaint of discrimination on the ground of race has no reasonable prospects of success. Mr Sasterawan has not provided any other substantial reason for the Tribunal to grant leave for his complaint to proceed. Order Leave is refused. 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.