CITATION: Shaikh -v- Police and Community Youth Clubs NSW Ltd & ors [2001] NSWADT 221 DIVISION: Equal Opportunity Division APPLICANT Zaheer Shaikh FIRST RESPONDENT PARTIES: Police and Community Youth Clubs NSW Ltd SECOND RESPONDENT Bob and Bea Dowling THIRD RESPONDENT Commissioner of Police, New South Wales Police Service FILE NUMBER: 011038 HEARING DATES: 06/09/2001 SUBMISSIONS CLOSED: 09/06/2001 DATE OF DECISION: 12/21/2001 BEFORE: Britton A - Judicial Member; Nemeth de Bikal L - Member; Lau L - Member APPLICATION: Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance - Victimisation MATTER FOR DECISION: Preliminary matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Sivananthan v Commissioner of Police, New South Police Service [2001] NSWADT 44 Commissioner of Police, NSW Police Service v Estate Edward John Russell & ors. [2001] NSWSC 745 CASES CITED: Assal v Department of Health and Housing (1992) EOC 92-409 Prakash v Bobb Borg Enterprises Pty Limited [1999] NSWADT 73 Waters v Public Transport Commission (1992) 173 CLR 349 IW v City of Perth (1997) 191 CLR 1 APPLICANT REPRESENTATION: S Friend, solicitor THIRD RESPONDENT S Winter, barrister ORDERS: Complaint of victimisation in respect of the third respondent is dismissed. 1 This decision concerns an application by the third respondent, the Commissioner of Police, NSW Police Service, that the complaint of victimisation lodged by the complainant, Mr Zaheer Shaikh, be dismissed pursuant to s. 111 of the Anti-Discrimination Act 1977 (NSW)(the Act). Section 111(1) of the Act provides: "where, at any stage of an inquiry, the Tribunal is satisfied the complaint is frivolous, vexatious, misconceived or lacking in substance or that for any other reason the complaint should not be entertained, it may dismiss the complaint." 2 A similar but narrower provision is to be found in the Administrative Decisions Tribunal Act , 1997 (NSW)(the Tribunal Act). Section 73(5)(h) of that Act provides that the Tribunal "may dismiss at any stage any proceedings before it if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance." 3 This dismissal application is considered under the provisions of s. 111(1) of the Act. Background 4 By letter dated 29 May 2001, the President of the Anti-Discrimination Board (respectively the President and the Board) pursuant to s. 94(1) of the Act referred to the Administrative Decisions Tribunal (ADT) three complaints made by Mr Shaikh in respect of the third respondent, the Police and Community Youth Clubs NSW Ltd (PCYC) and Bob and Bea Dowling, respectively the first and second respondents. The President characterises the complaints in respect of the first and second respondents as complaints relating to race discrimination in the provision of services and in respect of the third respondent as a complaint of victimisation. 5 The following is extracted from the President's Report, admitted into evidence with the consent of both parties: "Mr Zaheer Shaikh (the complainant) is of Pakistani origin. He wrote to the Board on 10 January 2000 alleging discrimination on the ground of race in the provision of services concerning the PCYC. He alleges that on the evening of 27 November 1999 he attended a dance party at the premises of PCYC Burwood. The organisers, Mr Bob and Bea Dowling, as well as their assistant, Mr Ross Wilkinson, allegedly accused him of not purchasing a ticket, made comments of a racial nature and attempted to forcefully remove him from the party. 6 Subsequent to the incident, the complainant made a complaint to PCYC and the NSW Police Service, it was investigated by Senior Sergeant Pratt who wrote a report about his investigation. The complainant was initially not given access to this report. 7 On 25 September 2000, the complainant lodged with the Board a further complaint of victimisation against the NSW Police Service due to comments made in Senior Sergeant Pratt's report." Victimisation 8 Mr Shaikh asserts that he was victimised by the third respondent through the acts of its employee, Senior Sergeant Pratt contrary to the provisions of s. 50 of the Act. Specifically Mr Shaikh's complaint concerns the Report authored by Senior Sergeant Pratt dated 10 December 1999 to which we shall return. 9 Section 50 of the Act provides: 50. Victimisation (1) It is unlawful for a person ("the discriminator") to subject another person ("the person victimised") to any detriment in any circumstances on the ground that the person victimised has: (a) brought proceedings against the discriminator or any other person under this Act, (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act, (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or (d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. (2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith. 10 In Sivananthan v Commissioner of Police, New South Police Service [2001] NSWADT 44 at [44] the Tribunal formulated the test to be applied in determining complaints of victimisation which we intend to adopt in this inquiry: "whether the respondent his employees or agents, subjected the complainant to any detriment on the ground that the complainant had done any of the things referred to in sub-paragraphs (a),(b),(c) and (d) of section 50(1) of the Act." Correct Respondent 11 This application proceeded on the basis that the Commissioner of Police, NSW Police Service was the correct respondent for the purpose of this inquiry. A recent decision of the Supreme Court of New South Wales, Commissioner of Police, NSW Police Service v Estate Edward John Russell & ors. [2001] NSWSC 745 determined that the State of NSW and not the Commissioner of Police, NSW Police Service was liable as "employer" or "principal" of police officers acting in that capacity who are found in breach of the provisions of the Act. This was not raised by either party in these proceedings. Accordingly in this decision we have not addressed this issue. Approach to s. 111(1) application 12 The authorities make clear that in exercising power to order summary judgment a court or tribunal must exercise exceptional caution. (See General Steel Industries v Commissioner for Railways (NSW)(1964) 112 CLR 125 at p129.) Webster v Lampard (1993) 177 CLR 598 is authority for the proposition that the issue on an application for summary judgement is not whether the plaintiff would succeed in their action but whether the material before the primary judge was such that the "action should not be permitted to go to trial in the ordinary way because it was apparent that it must fail." 13 While the authorities make clear that in exercising the power to award summary judgement extraordinary care should be exercised, we also note that where the requirements of s. 111(1) have been met we are obliged not to shy from an exercise of this power. We note the comments of Sir Ronald Wilson in Assal v Department of Health and Housing (1992) EOC 92-409 at p.78,900: "I find it consistent with the pastorally sensitive and conciliatory purpose of the Act, to interpret the power of summary dismissal conferred by s 25X [ Racial Discrimination Act 1975(Cth)] as reflecting the intention of the legislature that it is in the public interest as well as in the interest of both parties that the hearing of a complaint which is clearly shown to be lacking in substance should be summarily terminated. Certainly it is no kindness to a complainant to shrink from the exercise of the power conferred by s 25X of the Act in circumstances where that exercise is clearly warranted." 14 In Prakash v Bobb Borg Enterprises Pty Limited [1999] NSWADT 73 the appropriate test to be employed in determining whether an exercise of the Tribunal's powers under s. 111 of the Act is warranted because the complaint is "misconceived" or "lacking in substance" was considered. The Tribunal said [at 35 ]: "in undertaking this examination we believe that the appropriate way forward is to take the complainant's evidence at its highest point or, in other words and for the purpose of this exercise, to accept that everything which the complainant has put in evidence is true and then determine whether he could possibly succeed in his complaint of racial discrimination. In essence and in the circumstances of this case the Tribunal should evaluate the evidence as if a "no case" submission had been made at the conclusion of the complainant's evidence. If, at the end of this exercise the Tribunal concludes the complainant could not succeed it is likely, in the absence of abuse of process, that the complaint has proceeded this far because the complainant has misunderstood legal principles or has been advancing an untenable proposition of law or fact." 15 Accordingly the issue for us to determine is whether taking the complainant's evidence as its highest, is there any evidence to suggest that the complainant suffered any detriment through the acts or omission of the third respondent and if so, was the complainant subjected to any detriment on the ground that the he or she had done any of the things referred to in sub-paragraphs (a),(b),(c) and (d) of section 50(1) of the Act? Findings and Conclusions 16 A complainant alleging victimisation bears an onus of proving on the balance of probabilities a number of matters: - that a person ("the discriminator"); - subjected him or her ("the person victimised"); - to any detriment in any circumstances; - on the ground that the person victimised has done one of the things set out in sub–paragraphs (a),(b), (c) and (d) of s. 50(1) of the Act, or the discriminator knows or suspects that the person victimised intends to do one of those things. 17 It is not in issue that the Commissioner of Police and the author of the offending report, Sgt Pratt, were aware at all relevant times that Mr Shaikh had done one of the things referred to in s.50(1) of the Act that is made an allegation of unlawful race discrimination. 18 The question for determination is, is there any evidence if accepted, which suggests that, first, Mr Shaikh was subjected to any detriment by the conduct of Sgt Pratt and, second, if so, whether he was subjected to that detriment "on the ground that" he had made an allegation against the first and second respondents. It is for the complainant to prove a nexus between the detriment (if that is established) and the making of the allegation or complaint of racial discrimination. 19 The phrase "subject to" in the context of s.50 of the Act implies a deliberate decision by one person to do something to another or which directly concerns that other person with the actual or constructive knowledge that the other person will be affected in some fashion by that decision. For someone to be subjected to that particular conduct, he or she must be the object of that conduct. In short, the "discriminator" must intend to cause "the person victimised" to undergo some experience. 20 It is not necessary for Mr Shaikh to show that Sgt Pratt intended to cause detriment to him for that element of the alleged victimisation to be established. (See Waters v Public Transport Commission (1992) 173 CLR 349 at 359.) Of course, if there is evidence of intention to cause detriment to a person that will often be powerful evidence in a victimisation complaint, but it will frequently be the case that a person is subjected to a detriment without the alleged "discriminator" being motivated in that way. What must be established in the context of this inquiry is that Sgt Pratt so acted because Mr Shaikh made a relevant complaint. In short, a causal link must be established between Sgt Pratt's conduct and any alleged detriment suffered by Mr Shaikh. We note that s. 4A of the Act which provides that where an act is done for two or more reasons and one of the reasons consists of unlawful discrimination, then for the purposes of the Act, the act is taken to have been done for that reason, is not relevant for the purpose of s. 50. In this decision we intend to adopt the test used by Kirby J in IW v City of Perth (1997) 191 CLR 1 at 62-64, and more recently by the Appeal Panel in Sivananthan v Commissioner of Police, New South Police Service [at 43] that is, it is sufficient that the fact that the complainant had lodged a complaint of race discrimination, "had a real and causative effect in the sense that but for its presence the act complained of would not have occurred." 21 Is there any evidence which if accepted would support a finding that Mr Shaikh was subjected to any detriment by the conduct of Sgt Pratt? 22 Mr Friend, solicitor for Mr Shaikh contends that the investigation and consequential report produced by Sgt Pratt were biased, unfair and designed to discourage the Commissioner of Police (or his delegate) from taking action to remedy his complaint of race discrimination. As a consequence, he says, he was subjected to a detriment in three ways: first, the report rendered a successful settlement impossible; second, his feelings were wounded; and, third, he was patronised and referred to implicitly in the report as "an uptight person of a different race who should be treated kid-glove like." 23 It is submitted by counsel for the third respondent, Ms Winter, that there is no evidence that Mr Shaikh was subjected to any detriment. 24 Before drawing any conclusions about the allegation of detriment it is worthwhile to look at Sgt Pratt's report in some detail. 25 Sgt Pratt's report into the complaint by Mr Shaikh outlines in summary the evidence he collected during his investigation. He interviewed three people involved in the organising of the ballroom dancing sessions at the Burwood PCYC. He outlines their evidence in which they made allegations against Mr Shaikh to the effect that he had, on a number of occasions, sought to gain entry surreptitiously without paying or by getting someone else to pay for him. He noted that he was informed by one of the witnesses that Mr Shaikh had "caused trouble" at another venue and had "taken a discrimination suit out previously and had won it". 26 Secondly, he observed that the PCYC dancers included numbers of people of Asian, Indian and Pacific Island background, and that one of the witnesses who made allegations against Mr Shaikh (and against whom Mr Shaikh now complained was guilty of racial discrimination) was Asian. 27 Thirdly, he outlined his attempts to speak to Mr Shaikh about the issues. Mr Shaikh refused to discuss the matter with Sgt Pratt orally and stated that he wished a written reply to his complaint. 28 Finally, he forwarded his report to the Police Service Commander responsible for the PCYC stating the opinion that the matter was not one for the PCYC to be involved in and recommending that any written reply to Mr Shaikh be carefully worded "bearing in mind the statement from Dowling who believed that Shaikh had won some discrimination action previously." 29 The Commander (it would seem) noted "there is no evidence of discrimination by persons associated with Burwood PCYC. This appears to be a civil matter." 30 Central to the complainant's case is the assertion that Sgt Pratt "by wrongly stating the facts" subjected Mr Shaikh to the loss that the complaint was incapable of being successfully resolved and second, that Mr Shaikh was subjected to the detriment of wounded feelings. Mr Friend takes issue with two conclusions reached by Sgt Pratt and noted in his report. First, Sgt Pratt's opinion that the incident did not result from "any racial discrimination" and second, his characterisation of the complaint as one between Mr Shaikh and the second respondent. 31 Mr Friend concedes that a report prepared following the making of an allegation, as was the case here, cannot be said to automatically constitute a detriment, even where the findings made do not support the complainant's allegations. However, in this case asserts Mr Friend, the manner in which the investigation was carried out and the biased views of Sgt Pratt reflected in the formulation of the report caused Mr Shaikh to suffer a detriment. 32 It may be as Mr Friend asserts that Sgt Pratt was wrong in concluding that the incident did not result from "any racial discrimination." This of itself however does not establish that Sgt Pratt subjected Mr Shaikh to any detriment. Having received the complaint Sgt Pratt as directed followed it up. Sgt Pratt appears to have collected the available evidence and outlined it in his report. He states he attempted to listen to both sides of the argument, but Mr Shaikh for whatever reason refused to be interviewed. There is no evidence before us to contradict this claim. It is noteworthy that Sgt Pratt did not express a view as to the truthfulness or otherwise of the witnesses who spoke to him, nor did he express any adverse view about Mr Shaikh. As an investigator should, he recorded the evidence he had obtained. Again there is nothing before us to suggest otherwise. It appears to us that it was recorded in an objective fashion, without bias or without prejudging the outcome of the investigation. Having refused to speak to the investigator and to put his version of events, the report is necessarily unbalanced but not, in our opinion, biased on that account. Sgt Pratt's finding that "I doubt if this action [the exclusion of Mr Shaikh from the dance event] resulted from any racial discrimination" was clearly open to him from the evidence before him. 33 Mr Friend further contends that Sgt Pratt erred in offering the opinion " that this matter is one between Mr Shaikh and the venue users...and not the PCYC." This assessment, asserts Mr Friend, was wrong and in direct conflict with an undated internal PCYC memo (President's Report Tab 9), which states that, the dance event was "a club [PCYC] activity". According to Mr Friend, Sgt Pratt knew or should reasonably have known that the event was a PCYC activity. We understand Mr Friend to argue that as a consequence of this finding the PCYC was effectively encouraged to wash its hands of the matter denying Mr Shaikh a possible remedy, namely settlement of the matter. 34 Mr Friend's submission that Sgt Pratt's opinion on the relationship between the PCYC and the dance organisers constitutes a detriment is inextricably linked to the reasons Sgt Pratt reached the conclusions he did. While we doubt whether Sgt Pratt's view on this issue could be said to have subjected Mr Shaikh to a detriment, we proceed on the basis that we are wrong on this point and explore whether there is any evidence that such detriment was caused on the ground that Mr Shaikh had done one of the things set out in s. 50(1) of the Act. 35 Assuming that Sgt Pratt is in fact incorrect in respect of the legal relationship between the PCYC and the dance organisers is there any evidence before us to support a finding that Sgt Pratt reached this conclusion on the ground that Mr Shaikh had made an allegation of race discrimination? It goes without saying that in this case but for Mr Shaikh's complaint the report would not have been made. This of course is not sufficient to bring the complaint within the orbit of s. 50 of the Act. What must be established is that there is some evidence that if accepted would support a finding that but for the complaint Sgt Pratt would not have reached the conclusions he did on the legal relationship between the first and second respondent (the detriment). There is simply no evidence before us that Sgt Pratt drew the conclusion he did, on what is essentially a point of law, on the ground that he was somehow ill disposed or prejudiced towards Mr Shaikh because he had made a complaint of race discrimination. 36 Mr Friend also submits that the report contains prejudicial material concerning a previous (successful) complaint of discrimination by Mr Shaikh. It is difficult to see how that information, which Sgt Pratt clearly regarded as hearsay, can be regarded as prejudicial or detrimental to Mr Shaikh. Sgt Pratt did not comment that Mr Shaikh was a vexatious litigant, and does not imply such a thing. Indeed, he notes that Mr Shaikh had been successful in his complaint on a previous occasion, which implies, if anything, that Mr Shaikh was believed in relation to the previous matter. Whether it was relevant or irrelevant to the complaint of discrimination he was investigating, it was a matter which was stated by a witness and recorded by Sgt Pratt without comment on the weight to be given to it. 37 It is also submitted that Sgt Pratt's recommendation to the Commander PCYC that any written response to Mr Shaikh be carefully drafted did imply, in our opinion, a view on his part that Mr Shaikh was sensitive on issues of race and discrimination, but that would not and could not in any way suggest that Sgt Pratt was dismissive of Mr Shaikh, intended to patronise him or (consciously or unconsciously) to express any view which might humiliate Mr Shaikh. On the contrary, a fair and objective reading of the sentence complained of suggests that Sgt Pratt was advising his superior that, because of Mr Shaikh's sensitivity on racial matters, it was important not be offensive to him. 38 A submission that a police officer who recommends treating a person of Pakistani ethnic origin, who has just made a complaint of racial discrimination, with sensitivity is somehow insulting to or patronising of that person and thus constitutes a relevant detriment borders on the perverse. 39 In any event, even if Mr Shaikh suffered the detriment of wounded feelings as a result of reading the report and or those parts of the report referred to in [36] and [37] of this decision, as we infer he did or he would not now be complaining against the Police Service, there is in our view no evidence to support a finding that Sgt Pratt subjected Mr Shaikh to this purported detriment on the ground that he had made a relevant complaint. 40 From an objective point of view, we see no evidence which taken at its highest would support a finding that Mr Shaikh had been subjected directly or indirectly to any detriment by the acts or omission of Sgt Pratt and or the third respondent. Assuming we are wrong on this point we see no evidence which taken at its highest would support a finding that Mr Shaikh was subjected to any detriment on the ground that he had done any of the things referred to in sub-paragraphs (a), (b), (c) and (d) of section 50(1) of the Act. Orders The complaint of victimisation in respect of the third respondent is dismissed. 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.