Appeal Panel - Internal CITATION: Toll Pty Limited trading as Toll Express v Abdulrahman [2007] NSWADTAP 70 APPELLANT PARTIES: Toll Pty Ltd trading as Toll Express RESPONDENT Mohamed Abdulrahman FILE NUMBER: 079017 HEARING DATES: 18 December 2006 and 18 May 2007 SUBMISSIONS CLOSED: 18 May 2007 DATE OF DECISION: 22 November 2007 BEFORE: Hennessy N - Magistrate (Deputy President); Britton A - Deputy President; Bolt M - Non Judicial Member CATCHWORDS: costs - leave to extend to the merits MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 051041 DATE OF DECISION UNDER APPEAL: 08/01/2006 Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Civil Liability Act 2002 Disability Discrimination Act 1992 (Cth) Alexander v Home Office [1988] 1 WLR 968 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 32 Comcare v Fiedler [2001] FCA 1810 Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 FP and FQ on behalf of FR v Department of Education and Training [2003] NSWADT 68 Haines v Bendall (1990) 172 CLR 60 Hall v Sheiban Pty Ltd [1988-89] 85 ALR 503 CASES CITED: K v K [2000] NSWSC 1052 Khan v Commissioner, Department of Corrective Services & anor [2002] NSWADT 131 Kioa v West (1985) 159 CLR 550 O'Callaghan v Loder and The Commissioner for Main Roads [1983] 3 NSWLR 89 Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 Purvis v New South Wales (2003) 217 CLR 92 Tupou v Scruffy Murphy's Pty Ltd & ors [2007] NSWADT 192 Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598 K Nomchong, counsel REPRESENTATION: L Evans, counsel ORDERS: 1. The Tribunal's first order that the Respondent is to pay the Applicant general damages in the sum of $25,000 in relation to the claim of race discrimination is affirmed.; 2. The Tribunal's second order that the Respondent is to pay the Applicant's costs of these proceedings is set aside. ; The question of costs is remitted to the Tribunal for consideration on the merits. REASONS FOR DECISION Introduction 1 Mr Mohamed Abdulrahman is a Muslim whose first language is Arabic. He was born in Australia but spent extended periods of time in his parents' homeland, Lebanon. Mr Abdulrahman was employed by Toll Pty Ltd as a forklift driver. He complained that he was subjected to racist remarks by fellow employees and supervisors. The Tribunal found that his manager, Mr Troy Wallace, repeatedly referred to him as "Mokaakaakaahomed" as if he could not pronounce his name properly and asked him to change his name to an Anglo-Saxon name such as "John". The Tribunal also found that the union delegate, Mr Les Ponting, called him names such as "Osama Bin Laden" and "bomb chucker". The Tribunal found that Toll had discriminated against Mr Abdulrahman on the ground of his race in breach of the Anti-Discrimination Act 1977 (AD Act) and awarded him $25,000 in damages. The Tribunal also ordered Toll to pay Mr Abdulrahman's costs. 2 Toll has appealed against that decision on questions of law and has sought leave for the appeal to be extended to the merits of the Tribunal's decision: Administrative Decisions Tribunal Act 1997 (Tribunal Act), section 113(2). Summary of legislative provisions 3 It is unlawful for an employer to discriminate against an employee on the ground of race by subjecting him or her to a detriment: AD Act, section 8(2)(c). An employer is vicariously liable for the acts of its employees in certain circumstances: section 53. A detriment includes being under a substantial disadvantage in comparison with employees of another race and can include being subjected to racist comments: O'Callaghan v Loder and The Commissioner for Main Roads [1983] 3 NSWLR 89 at 105; FP and FQ on behalf of FR v Department of Education and Training [2003] NSWADT 68. Discrimination on the ground of race, for the purposes of section 8, is defined in section 7. In this case, Mr Abdulrahman alleged "direct" discrimination. Direct discrimination has requires less favourable treatment than the treatment that was or would have been afforded to a person not of his race in the same or similar circumstances. In addition the treatment must be "on the ground of" the person's race, that is, race must be at least one of the reasons for the treatment: AD Act, section 4A. "Race" is defined in section 4 to include "ethno-religious origin." Religion, by itself, is not a ground of discrimination. Tribunal's decision 4 The Tribunal made several findings of fact including: a) The name-calling occurred in the workplace as alleged by Mr Abdulrahman. Mr Wallace repeatedly mocked Mr Abdulrahman by mispronouncing his name over the public address system and asking him to change his name to an Anglo-Saxon name such as "John". He made demeaning remarks about Mr Abdulrahman's wife's form of dress. Mr Ponting called Mr Abdulrahman names such as "bombchucker" and "Osama Bin Laden" (at [86] and [87]). b) The name-calling amounted to a "detriment" because it created a hostile atmosphere in the workplace (at [90]). c) The name-calling was ethno-religiously based as it related to Mr Abdulrahman's middle-eastern background and his religion and his wife's religion as a Muslim (at [88]). d) Mr Abdulrahman was subjected to differential treatment on the ground of race because he was treated differently from persons who were not of his ethno-religious background. Employees of Italian background being called "wog" or "dago" is qualitatively different from the names Mr Abdulrahman was called (at [89]). d) Toll is vicariously liable for the conduct of its employees under section 53 (at [97]). e) The complaint is substantiated and Mr Abdulrahman is entitled to damages of $25,000. Grounds of Appeal 5 There are five grounds of appeal on a question of law. 1) The Tribunal misapplied the test for direct discrimination when it decided that the name-calling constituted race (ethno-religious) discrimination and that it therefore fell within the definition of race. 2) The Tribunal misapplied the test in Purvis v New South Wales (2003) 217 CLR 92. 3) The Tribunal made findings when it had no evidence for those findings. 4) The Tribunal erred in law in exercising its discretion to award $25,000 in general damages as that amount is outside the appropriate range in the circumstances of the case. 5) The Tribunal did not afford Toll procedural fairness by making an order for costs without giving it an opportunity to be heard. Ground 1 – misapplication of the test for direct discrimination 6 Insufficient evidence. The first submission in relation to this ground of appeal was that there was insufficient evidence as to whether Mr Abdulrahman was a member of an ethno-religious group for the Tribunal to find that the conduct complained of was based on Mr Abdulrahman's race. Toll said that the only evidence of Mr Abdulrahman's race was that: he identifies as a Muslim; he attends Mosque twice a year and fasts for Ramadan, he is a first generation Australian and his family came from South Lebanon in the late 1960's; and, he identifies himself as an Australian whose background is Lebanese. It was also apparent that Mr Abdulrahman's first language is Arabic. Toll submitted that in order to bring Mr Abdulrahman's claim within the definition of "ethno-religious origin" the Tribunal was required to determine whether a Muslim born in Australia of Lebanese parents is a member of a group which shares an historical identity in terms of their racial or ethnic origin. Toll submitted that the Tribunal failed to make this determination and, in any case, there was no evidence in relation to that question. In addition, Toll said that there was no evidence of Mr Abdulrahman's wife's race apart from the fact that she wore a head scarf. It said that any finding based on Mr Abdulrahman's wife race was made in error. 7 Tribunal's decision. The Tribunal discussed the meaning of the term "ethno religious origin" (at [72] to [74]). The Tribunal found that Mr Abdulrahman was a Muslim (at [5]); that his family originated from the south of Lebanon (at [6]); that he was educated in Lebanon; and that his first language was Arabic (at [33]). It went on to conclude (at [88]) that: The Tribunal is satisfied that the Applicant is a Muslim. The Tribunal is satisfied that the conduct and remarks are ethno-religiously based as they relate to the Applicant's middle-eastern background and his religion and his wife's religion as a Muslim. Accordingly, the Tribunal is satisfied that the comments and name-calling relating to the Applicant being a Muslim with a Muslim name fall within the definition of "race" for the purposes of the ADA. 8 Meaning of ethno-religious origin. The Tribunal set out its understanding of the meaning of "ethno-religious origin" at [73] and [74] of the decision. In Khan v Commissioner, Department of Corrective Services & anor [2002] NSWADT 131 at [20], after a comprehensive analysis of the origin and meaning of the term, the Tribunal said "ethno-religious origin" should be given its ordinary meaning, namely " . . . a strong association between a person's or a group's nationality or ethnicity, culture, history and his, her or its religious beliefs and practices". We adopt this definition. 9 Conclusion. Mr Abdulrahman had the onus of proving his case. That includes proving that he is a member of a "race" as defined in section 4 of the AD Act if that fact was not expressly or impliedly conceded. We do not accept Mr Abdulrahman's submission that this is a case where Toll has forfeited its right to raise this issue on appeal because it did not raise it at first instance: Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598 at [51]. Membership of a group with an ethno-religious origin was a fact that Mr Abdulrahman had to prove, not an argument or defence available to Toll. However, in our view, Toll impliedly conceded that Mr Abdulrahman was a member of an ethno-religious group. Although no formal pleadings were filed which would have given Toll the opportunity to admit or deny ethno-religious origin, when making its final submissions Toll's representative did not raise the issue of Mr Abdulrahman's race. Rather, it submitted that the Tribunal should accept the evidence of its employees that the alleged comments were not made. Toll's conduct in failing to raise Mr Abdulrahman's race as an issue, amounts to an implied concession that he came within the definition of a person having an ethno-religious origin. That concession made it unnecessary, in hindsight, for Mr Abdulrahman to adduce evidence of that fact and it also made it strictly unnecessary for the Tribunal to determine that issue. 10 In Comcare v Fiedler [2001] FCA 1810 at [40], the Full Federal Court said, in relation to the Administrative Appeals Tribunal, that: The Tribunal is not, as a general rule, required to ignore the fact that one or both parties have made admissions or concessions, express or implied, that particular issues which the original decision-maker may have had to consider need not be the subject of inquiry and determination by the Tribunal. The Tribunal will, however, fall into error of law by failing to inquire of its own motion into, and make a finding on, an issue the subject of an admission or concession by a party that is material to its decision if there is reason to doubt that the admission or concession is factually justified. But in the absence of there being some reason to question the admission or concession, the Tribunal will generally be entitled not to inquire into the issue for itself, but to act on that admission or concession in making its decision. 11 In this case, there was no reason for the Tribunal to question Toll's implied concession that Mr Abdulrahman was a member of ethno-religious group. It could merely have noted that Mr Abdulrahman's race was not an issue. Instead, it made a finding which was consistent with the concession. There was no need for any additional expert or other evidence in relation to the association or link between Mr Abdulrahman's nationality or ethnicity, culture, history and his religious beliefs and practices. The term "ethno-religious origin" does not have a technical or special meaning. 12 Even if there was a need for evidence of Mr Abdulrahman's race, that evidence did not need to come from Mr Abdulrahman or from an expert witness. It is common knowledge that there is a strong association between persons of Lebanese origin or heritage and the Muslim religion. While Muslims come from a diversity of racial and ethnic backgrounds, for historical reasons, the religious faith or identity of a Lebanese person is an integral part of his or her ethnic and cultural identity. It is a matter of historical record that Lebanon's population is comprised of various religious groups including Christians and Muslims and that in the 1980s there was a civil war with Christians on one side and Muslims on the other. The strong association between Mr Abdulrahman's national or ethnic origin and his religion means that it was open to the Tribunal to conclude that Mr Abdulrahman was a person with an ethno-religious origin. 13 Wife's race. The Tribunal found (at [86]) that Mr Wallace had made demeaning remarks about Mr Abdulrahman's wife's Muslim form of dress. That finding related to an allegation that Mr Wallace asked Mr Abdulrahman whether his wife wore a headscarf around her head and face. When Mr Abdulrahman said that she did, Mr Wallace said "fuck that ...I like to see some body". At [88] the Tribunal said that it was satisfied that this and other remarks were "ethno-religiously based as they relate to the Applicant's middle-eastern background and his religion and his wife's religion as a Muslim." Toll said there was no evidence of Mr Abdulrahman's wife being a Muslim and that the Tribunal erred in making this finding. While we agree that there was no direct evidence that Mr Abdulrahman's wife was a Muslim, the finding that the remark was based on her religion was unnecessary. 14 All the Tribunal needed to find was that the remark was "on the ground of" Mr Abdulrahman's race. Consequently, the finding about his wife's race made no difference to the decision and there is no need to set aside the decision on that basis: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353 per Mason CJ). It was open to the Tribunal to infer that the comment was made on the ground of Mr Abdulrahman's race because it is common knowledge that many Middle Eastern (and other) Muslim women wear a headscarf in accordance with the tenets of their religion. It is a sign of modesty and self-respect. The affront was intended to offend Mr Abdulrahman by implying that his religion and his ethnic and cultural background were not worthy of respect. 15 Comments not based on Mr Abdulrahman's race. Alternatively, Toll submitted that the Tribunal erred when it found that the comments made by its employees were made "on the ground of" Mr Abdulrahman's race. The Tribunal decided (at [89]) that it was satisfied that: . . . the Applicant was treated differently from persons, who were not of his race or ethno-religious background, in that his Muslim name was mocked and he was asked to change his Muslim name to an Anglo-Saxon name and the nicknames of "bombchucker" and "Osama Bin Laden" were based on the fact that Osama Bin Laden is a Muslim who was reputedly involved in the bombings in the USA on September 11, 2001 and terrorism. The names of "bombchucker" and "Osama Bin Laden" were being used to refer to the fact that the Applicant is a Muslim and the reputed involvement of Muslims in terrorism. Evidence was given by Mr Ponting that everyone in the workplace was subjected to name-calling and offensive nicknames. He was called "dago" and "wog" because of his ethnic Italian background. However it is the Tribunal's view that the name calling that the Applicant was subjected to was qualitatively different from being called a "wog" or "dago" in that the names being used about the Applicant were words that suggested that by being a Muslim, the Applicant was also a terrorist. There is no evidence before the Tribunal that any other employee was subjected to the same treatment. The Tribunal is satisfied that the Applicant was subjected to differential treatment on the ground of his race. 16 Toll said that the Tribunal decided that the names of "Osama Bin Laden" and "bombchucker" were given to Mr Abdulrahman because he was Muslim, not because he was Lebanese. According to Toll, it can be inferred that the Tribunal determined that terrorism was a characteristic which generally appertains to people from a middle eastern background. Toll said there was no evidence on which the Tribunal could have come to that conclusion. 17 Conclusion. We do not agree that the Tribunal fell into error. Although the Tribunal referred to Mr Abdulrahman's religious background at various points in the decision, it is clear when reading the decision as a whole, that it was the combination of his religion and his Lebanese ethnicity and/or his middle eastern background that the Tribunal considered to be the basis for the name calling. For example, the Tribunal referred to Mr Abdulrahman's religion (at [89]), but also said (at [88]) that the combination of Mr Abdulrahman's middle eastern background and his religion was the reason for the name calling. The Tribunal referred to Mr Abdulrahman's "Lebanese/Muslim name of Mohammed" (at [86]) and said that the remarks were "ethno-religiously" based (at [88]). 18 The Tribunal found that Mr Wallace had called Mr Abdulrahman "Mokaakaakaahomed" and demanded that he use an Anglo-Saxon name, such as "John" or "David" instead. The Tribunal also found that this constituted direct race discrimination. It was open to the Tribunal to infer that an ethno/religious insult is implied in the mockery. It is a matter of common knowledge that Mohamed (spelt in various ways) was the name of the Prophet of Islam and that it is frequently given to males of the Islamic faith. That Islam is the dominant religion in the Middle East, that Lebanon is a Middle Eastern country and that the main religions practised in Lebanon are Islam and Christianity are also matters of common knowledge. If a person deliberately ridicules the name Mohamed, and the recipient of the abuse is Lebanese, it may readily be inferred that the perpetrator intended a slight upon the victim because of the combination of his ethnicity and his Islamic faith. 19 The Tribunal found that Mr Abdulrahman was subjected to insults and disparaging nicknames such as "Osama bin Laden" and "bombchucker". These so-called nicknames were used after the United States and its allies invaded Iraq. It is well-known that Osama bin Laden is the leader of al-Qaeda, the organisation that attacked the World Trade Centre and the Pentagon on 11 September 2001 using passenger aircraft. Since 11 September 2001 or shortly thereafter, Osama bin Laden and al-Qaeda have been household names in this country. Bin Laden is well-known to be a Saudi Arabian and al-Qaeda is a well-known organisation with its origins in the conflicts of the Middle East. It is also notorious that al-Qaeda is a radical Islamist organisation. 20 It is because of the link al-Qaeda makes between Islam and the use of violence in the course of its jihad (or holy war) against the United States and its allies, that the link has been made in the minds of many non-Muslims between Muslims from Middle Eastern countries and violence. Those who called Mr Abdulrahman a "bombchucker" and nicknamed him "Osama bin Laden", linked his Middle Eastern background with his religion and the activities of al-Qaeda and discriminated against him because of his ethno-religious origin. We can detect no error in the Tribunal's finding that the name calling amounted to direct discrimination on the ground of race. Ground 2 The Tribunal misapplied the test in Purvis 21 The test for direct race discrimination is found in section 7(1)(a): (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, 22 This test requires two elements to be established. The first is differential treatment, which involves a comparison between the way the person was treated with the way a person not of that race was or would have been treated in circumstances which are the same or not materially different. The second requirement, sometimes referred to as the "causation" element, is that the treatment was "on the ground of race": Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5. 23 In Purvis v State of New South Wales (2003) 202 ALR 133 the High Court examined the elements of direct discrimination in the context of s 5(1) of the Disability Discrimination Act 1992 (Cth) which is in similar terms to section 7 of the AD Act. The majority (Gummow, Hayne and Heydon JJ) held (at [223]) that when making the comparison for the purpose of determining whether there has been differential treatment, the circumstances attending the treatment given (or to be given) to the disabled person must be identified. Those circumstances are "all of the objective features which surround the actual or intended treatment of the disabled person by the alleged discriminator (at [224]). Even circumstances that are connected to the person's disability, such as a propensity to exhibit violent behaviour, must be included. The comparison is between the person with a disability who exhibits violent behaviour and a person without a disability who exhibits violent behaviour. 24 Tribunal's application of the differential treatment test. At [82] the Tribunal accepted Mr Ponting's evidence that "nicknames" based on race such as the ones he had been called ("dago" and "'wog") were common in the workplace and accepted. The Tribunal also noted (at [67] and [89]) that Mr Ponting said that everyone in the workplace was subjected to name-calling, racial slurs and offensive nicknames. However, the Tribunal concluded that "the name calling that the Applicant was subjected to was qualitatively different from being called a "wog" or "dago" in that the names being used about the Applicant were words that suggested that by being a Muslim, the Applicant was also a terrorist". The Tribunal went on to note that there was "no evidence before the Tribunal that any other employee was subjected to the same treatment". 25 Include imputed features to comparator. Ms Nomchong, counsel for Toll, submitted that when comparing the treatment that was afforded to Mr Abdulrahman with the treatment that was afforded to employees of a different race, the Tribunal erred by not including in the objective circumstances the fact that Mr Abdulrahman was presumed to be violent or a terrorist because he was a Muslim from Lebanon. In her words, "Purvis requires the comparator to include attributes of the relevant ground of discrimination, on both sides of the equation. In this case, the question is whether the respondent as a Muslim of Lebanese extraction with presumed attributes relating to violence and terrorism was treated, or would have been treated any differently from other employees who were not of the same racial background but had racial backgrounds to which violence (including terrorism) was attributed". She said that no evidence was led on this point. 26 Conclusion. According to the majority in Purvis, the circumstances which must be the same or not materially different, are the "objective features which surround the actual or intended treatment of the (disabled) person". While those features may include features connected with the person's race, they do not include features which a person is presumed or imputed to have. There was no suggestion that Mr Abdulrahman was violent or a terrorist. That was a feature that was imputed to him through the names he was called. Purvis does not require the Tribunal to include imputed or presumed stereotypical or prejudiced assumptions when identifying the objective circumstances. In particular, Purvis does not require the comparison in this case to be made with a person of a different race who is assumed to have violent or terrorist tendencies. If that were the case then prejudice and stereotyping on the ground of race would be lawful. 27 Treatment afforded to the comparator. Ms Nomchong also submitted that given that the Tribunal accepted Mr Ponting's evidence, its conclusion (at [89]) that there was no evidence that any other employee was subject to the same treatment as Mr Abdulrahman was wrong. 28 Conclusion. We do not accept Ms Nomchong's characterisation of the Tribunal's reasons. By "the same treatment" the Tribunal was referring to treatment of the same level of severity as that directed to Mr Abdulrahman. That is clear from the fact that the Tribunal said that there was a qualitative difference between being called a "wog" or a "dago" and the names that Mr Abdulrahman was called. It was open to the Tribunal to find there was a qualitative difference in the circumstances of the offending name calling. Ground 4 – damages outside the appropriate range 29 The Tribunal awarded Mr Abdulrahman $25,000 in damages for non-economic loss, that is for injury to feelings, hurt and humiliation. Ms Nomchong, on behalf of Toll, submitted that there was insufficient evidence to justify an award of that magnitude. She also said that Dr Bajpe's report was not formally tendered into evidence and that the Tribunal should not have relied on it. Finally Ms Nomchong submitted that the Tribunal had gone outside the range of damages awarded to applicants in comparable circumstances. She argued that the level of damages suggests that the Tribunal was punishing Toll for breaching the AD Act rather than compensating Mr Abdulrahman for the breach. 30 General principles. Section 108(2) relevantly provides that: If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following: (a) except in respect of a matter referred to the Tribunal under section 95 (2), order the respondent to pay the complainant damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct 31 The general rule is that damages for non-economic loss should put the applicant in the situation that they would been in had the discriminatory conduct not occurred: Hall v Sheiban Pty Ltd [1988-89] 85 ALR 503 at [73]; Haines v Bendall (1990) 172 CLR 60 at 63. 32 Evidence supporting damages award. Mr Abdulrahman gave evidence that he felt humiliated and that his pride was taken away by the mocking of his name on the loudspeaker. He also said that it was "embarrassing and shameful" to him. In relation to the comments of "Osama" and "bombchucker", Mr Abdulrahman said that he "felt bad" and that he "felt small". After resigning Mr Abdulrahman said he continued to feel stressed about the events. The Tribunal also referred (at [34]) to a report of Dr Bajpe dated 5 July 2005. Dr Bajpe stated that the Applicant "was being subjected to a prejudicial, racial and provoking working environment, where he felt the danger if he unleashed his hurting emotions in retaliatory verbal reaction". 33 We do not agree with Toll's submission that the Tribunal made an error of law in taking into account Dr Bajpe's report when it was not formally tendered in evidence. Even though other documentary evidence was tendered and marked as exhibits, the Tribunal is not bound by the rules of evidence and may determine its own procedure: Tribunal Act, section 73(1) and (2). It may also act with as little formality as the circumstances of the case permit: Tribunal Act, section 73(3). The only qualification to these principles is that the Tribunal must afford the parties procedural fairness. While it may have been an oversight on the Tribunal's part, not to formally admit the report into evidence, Toll did not submit that it was procedurally unfair for the Tribunal to rely on the report. We are not persuaded that it made an error of law by doing so. 34 Mr Abdulrahman gave evidence that he took a course of anti-depressants prescribed by Dr Bajpe. Toll submitted that the doctor's report does not fully support Mr Abdulrahman's evidence because it does not refer to any prescription to treat depression. Furthermore, Dr Bajpe was not called to give evidence to expand on the information in the report. In our view, neither the failure of Dr Bajpe to mention a prescription for anti-depressants nor the failure of Mr Abdulrahman to call Dr Bajpe, mean that the Tribunal has erred in awarding Mr Abdulrahman the level of damages that it did. There was both medical and direct evidence to support that award. 35 Outside range of damages. Toll also submitted that the amount of $25,000 was outside the range of damages awarded in comparable cases. In support of this proposition Toll cited several decisions of State and Federal courts and tribunals. Our view is that it is not permissible to compare the amount the Tribunal awarded with a norm or standard for the assessment of damages: Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118. Alternatively, even if it is permissible to compare this case with other similar cases, the quantum of damages awarded here does not constitute an error of law. The relevant principles were set out by the Tribunal in Tupou v Scruffy Murphy's Pty Ltd & ors [2007] NSWADT 192 at [91] – [94]: [Planet Fisheries] . . . involved an appeal against an award for general damages in a personal injury matter arising out of an action in negligence. The Court held that an award for general damages can only be set aside on appeal if it is 'out of proportion to the circumstances of the case'. Their Honours, Barwick CJ, Kitto, J and Menzies J, 'emphatically reject[ed]' the submission that 'in deciding whether or not an award of general damages was excessive, we should 'seek out a norm or standard in the decisions of this Court for the assessment of general damages, by comparison'. Their Honours, said (at 125-126): It is the relationship of the award to the injury and its consequences as established in the evidence in the case in question which is to be proportionate. It is only if, there being no other error, the award is grossly disproportionate to those injuries and consequences that it can be set aside. Whether it is so or not is a matter of judgment in the sound exercise of a sense of proportion. It is not a matter to be resolved by reference to some norm or standard supposedly to be derived from a consideration of amounts awarded in a number of other specific cases. 92 Planet Fisheries has not been without its critics. Handley JA, for example, commented in James Hardie & Co Pty Limited v Arthur Austin Newton; State Rail Authority of NSW v Arthur Austin Newton (1997) 42 NSWLR 729 (at 732) Some day the High Court will explain why awards of general damages for personal injuries should not be compared, as required by Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118, but defamation awards can be compared with awards for general damages in personal injury cases ( Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44), and sentences of co-offenders must be compared ( Lowe v The Queen (1984) 154 CLR 606; Jones v The Queen (1993) 67 ALJR 376)... in my opinion justice to litigants requires that awards for similar injuries be broadly comparable. 93 (See also the comments of Kirby P (as he then was) in Moran v McMahon (1985) 3 NSWLR 700 (704 - 708).) 94 The introduction of the Civil Liability Act 2002, has limited application of Planet in NSW. It is now permissible for a court or tribunal to refer to earlier decisions of that or other courts (or tribunals) in determining damages for non-economic loss in personal injury matters (section 17A). Proceedings bought under the Anti-Discrimination Act are exempt from the operation of Civil Liability Act (section 3B(g)). Planet therefore will still be relevant assuming of course that a complaint of unlawful discrimination is considered to be akin to a tort. As observed by the Appeal Panel in Mooney, the long held view that a complaint of unlawful discrimination is akin to an action in tort, and therefore governed by the common law rules which govern the award of damages in actions in tort, was rejected by Spigelman CJ, in obiter, in Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232 (at 245-246). 36 Even if it is open to us to consider comparable cases, we are not persuaded that an award of $25,000 constitutes an error of law because it is "outside the range". The amount awarded depends on the "experience and good sense" of the Tribunal members: Alexander v Home Office [1988] 1 WLR 968 per May LJ at 975. The Tribunal assessed the level of Mr Abdulrahman's hurt and humiliation and took into account supporting medical evidence. The Civil Liability Act 2002 does not apply. The Tribunal made no error in deciding that the sum of $25,000 would compensate Mr Abdulrahman for the discriminatory conduct of Toll's employees. Ground 5 –costs order procedurally unfair 37 The Tribunal ordered that Toll pay Mr Abdulrahman's costs. Mr Abdulrahman made no application for costs and the Tribunal did not give Toll an opportunity to make submissions as to whether an award of costs should be made. 38 The Tribunal has a discretion to order costs under section 110 of the AD Act which states: (1) Each party to an inquiry is to pay his or her own costs, except as provided by this section. (2) If the Tribunal is of the opinion in a particular case that there are circumstances that justify it doing so, it may make such order as to costs and security for costs, whether by way of interim order or otherwise, as it thinks fit. 39 Ms Nomchong submitted that the Tribunal failed to accord Toll procedural fairness by making a costs order without giving it an opportunity to be heard. The Tribunal is bound to afford procedural fairness: Tribunal Act, section 73(2). The hearing rule of procedural fairness requires that a decision maker hear a person before making a decision affecting their interests: Kioa v West (1985) 159 CLR 550. The Tribunal did not do so and for that reason the costs order should be set aside. The question of costs may either be remitted to the Tribunal for consideration according to law, or the Appeal Panel may extend the appeal to the merits of the Tribunal's decision on this point and deal with any application for costs Mr Abdulrahman may wish to make: Tribunal Act, section 114(2). We consider it to be preferable for the Tribunal who heard the case at first instance to determine any application for costs. Consequently, we remit the question of costs to the Tribunal to be determined on the merits. Extension to the merits in relation to factual findings 40 Introduction. Toll challenged three findings of fact made by the Tribunal and requested leave for the appeal to be extended to the merits of the decision: Tribunal Act, section 113(2). The first was a finding that Mr Ponting's oral evidence contradicted his own written statement and the evidence of two other witnesses. The second was a finding that Mr Ponting gave oral evidence in an "open and frank manner" but then only accepted that evidence where it was consistent with Mr Abdulrahman's evidence. The third was a finding that Mr Abdulrahman was a credible witness when the accuracy of his evidence was in real doubt. The Appeal Panel would consider giving leave if the Tribunal went about its fact finding process in a way which was so unfair or unorthodox that it would be in the interests of justice for it to be reviewed: K v K [2000] NSWSC 1052 per Young J at [15]. 41 Consistency of Mr Ponting's evidence. At [83] the Tribunal said that: The oral evidence of Mr Ponting contradicts his own written statement and the written statements and oral evidence of both Mr Wallace and Mr Primmer. 42 Toll submitted that this statement was incorrect because the oral evidence did not contradict Mr Ponting's written statements. According to Toll, he denied ever having discriminated against Mr Abdulrahman or calling him names based on religion or race. It was said that he gave the same oral evidence to the Tribunal. 43 In his statement, Mr Ponting said: I deny that I discriminated in any way against the applicant or that I called him inappropriate names based on religion, race or anything else. On occasions when talking with the Applicant and others I have sworn although no more so than occurs commonly within the trucking industry. 44 In cross-examination Mr Ponting said: Q. And specifically in relation to Mr Abdulrahman, you would have heard comments directed towards him? A. Not, not front to front. I've heard of it, but that's only hearsay, right. And the said gentleman, I don't know whether you've been, been informed by any of the other witnesses or what, but the said gentleman went to another Lebanese gentleman on the site and said, we've got to stick together here and fix these Aussies so-- Q. So you'd agree that on the work floor there's a fair amount of racial-- A. Not just towards that one gentleman, it's towards everybody. It's all in jest, it's not, nothing - there's no derogatory statements made, it's just all in jest. Because I, I'm of Italian heritage and I often get called a wog and a dago and stuff like that, it doesn't worry me. . . . Q. Having heard certain slang comments, as you put them, what is your response in relation to those comments, as the union delegate? A. Well it's, as I said like, I've been in the transport industry for 40 years and it's never changed from day dot. It's like taking a fellow into the pub and telling everybody else in the room not to swear while he's there. It's, you know, that's just ludicrous. We're not all - what would you call it - I suppose you could call us Christians if you like, but we're not really practising Christians. Q. So racially based comments do occur and you don't do anything about it? A. Well, what do you want me to do? I can't do anything about it. I'm a delegate, I'm not their babysitter or educator or curator or whatever you'd like to call me. I don't think it's any worse on our site than what it is out on the streets so-- . . . GROTTE: Sorry, Mr Henness, can I just interrupt? Q. Mr Ponting, you just said that racial slurs do occur, and it's all part of the language that's used and you've been identified-- A. It's right throughout the-- Q. --as the maggot and whatever-- A. It's right throughout the workforce. . . . A. It's jesting and joking between the men on the floor. Q. I understand what you're saying, but we're asking you for just some examples of the type of words that might be used. A. Well, I get called maggot, wog, dago. NEMETH DE BIKAL: Q. What's some other nicknames for other people? A. Well, it's the same sort of deal. It's just right throughout, it's right throughout the country. Right like, you'd have to have somebody like Reverend Ted Nile sitting at the gate and give you a slap across the chops or something every time you swore or carried on. It's the norm. It's the same as you go to a hotel. Surely to God you people don't think you go to a hotel and don't hear bad language. GROTTE: Q. No. But I guess what I'm asking you is that it goes on and it's accepted because it's just part of the banter between people? A. Yeah, as I said it's - I've never seen it in a derogatory statement, it's all joking amongst one another. Q. You're saying that it's said with goodwill. A. Yeah, yeah. . . . HENNESS: Q. Specifically, you say that you haven't heard Mr Abdulrahman called a bomb chucker? A. I didn't hear it, but I heard the rumour that some people had said it and-- Q. I'm suggesting-- A. I'm not going to crucify myself on hearsay from somebody else. Q. I'm suggesting that you in fact have called him that name. A. Never. Q. That you in fact called him Osama Bin Laden. A. All I said to him once, when he said if you keep it up I'll sue you, you and the company, I said, Well, if you've got the money, you go ahead and do it. If you don't like it, get over it. Q. And that you've heard Mr Wallace over the PA system, the paging system-- A. That's never happened. Q. You say that's never happened. A. That never happened. And I think there's 32 other people on the floor will verify it. Q. So did you see that you had a role to play if someone, well, like Mr Abdulrahman says to you that he's had this problem with racial slurs, and you know that in all probability it has happened even though you haven't heard it, did you feel that you had a role-- A. I told you, I went around and told everybody-- Q. Well, you-- A. --to shut up and leave him alone. Q. All right. So you, you felt you had a role to play-- A. That's, that's my role. That's the end of my role. Q. All right. But you told people that he didn't like it-- A. Because otherwise, there's 156 boys on that site, men, ranging from 20 to 60, and the geriatric age the same as me, right. Now, if I was to run around there and protect each person from any sort of a slur, I would get nothing done. Q. Okay. A. I would be the greatest pain in the arse the company's ever had on their floor. 45 Ms Nomchong is correct when she says that Mr Ponting was consistent in denying that he called Mr Abdulrahman inappropriate names based on religion, race or anything else. However, Mr Ponting gave oral evidence admitting that "everybody" was subjected to racially based comments. He also admitted that he had heard that people had called Mr Abdulrahman "bomb chucker" but that he was not going to "crucify" himself on "hearsay from somebody else". He also said that he told everyone to "shut up" and leave Mr Abdulrahman alone. While not directly inconsistent with his own evidence or that of other witnesses, Mr Ponting's oral evidence tended to support Mr Abdulrahman's version of events. While the Tribunal's use of the word "inconsistent" was not strictly correct, we are not persuaded that infelicity of language justifies leave being given to extend the appeal to the merits of the Tribunal's decision on this point. 46 Selective acceptance of Mr Ponting's evidence. Toll's second objection to the way the Tribunal went about its fact finding role was that it accepted Mr Ponting's evidence because it was given in person, under oath, in an open and frank manner, but then rejected those parts of the evidence which were inconsistent with Mr Abdulrahman's evidence. At [83] the Tribunal said: Despite the steadfast denials by Mr Wallace and Mr Primmer of any name calling and racial slurs with respect to the Applicant in the workplace, the Tribunal prefers the oral evidence of Mr Ponting, because it is evidence that was given in person under oath in an open and frank manner and it is consistent with the evidence of the Applicant. The Tribunal found it credible in so far as it confirms the claims by the Applicant. Given the oral evidence of Mr Ponting, the Tribunal is satisfied that Mr Wallace and Mr Primmer have not been truthful. 47 While the Tribunal could have expressed itself more precisely, it is clear that it accepted Mr Ponting's evidence that he had heard Mr Abdulrahman being called names and to that extent it was consistent with Mr Abdulrahman's evidence. We understand the Tribunal to have meant that, to that extent, Mr Ponting's evidence was given in an open and frank manner. The Tribunal did not accept Mr Ponting's denial that he called Mr Abdulrahman racist names because it found that he had called him names such as "bombchucker" and "Osama Bin Laden". Again, we are not persuaded that this lack of precision justifies the appeal being extended to the merits of the Tribunal's decision. 48 Doubt about accuracy of Mr Abdulrahman's evidence. Ms Nomchong's third point was that despite doubt about the reliability of Mr Abdulrahman's evidence, the Tribunal accepted that evidence. In particular, Ms Nomchong said that because of his difficulty with English, Mr Abdulrahman did not understand some of the questions that were put to him. He asked for an interpreter but none was provided. Mr Abdulrahman's legal representative conceded that his English was limited. The following exchange took place between the presiding member and Mr Abdulrahman's lawyer: GROTTE: I'm concerned that Mr Abdulrahman has in fact asked for an interpreter and given what he's just told us now he's really only had two years of schooling in Australia. This is a matter for you, Mr Henness, but I'm expressing a concern that his level of understanding is maybe not what we had assumed it to be. HENNESS: Yes. It might be that I need to speak with my client in relation to this. His English is very limited. GROTTE: He does seem to understand and we're now getting the evidence that we probably need. 49 The Tribunal was satisfied after raising the issue in the proceedings that Mr Abdulrahman's English was adequate for the purpose of giving evidence. Having limited English does not necessarily affect a witnesses' credibility, nor, in this case, does it justify opening the appeal to the merits of the Tribunal's decision. Orders 1. The Tribunal's first order that the Respondent is to pay the Applicant general damages in the sum of $25,000 in relation to the claim of race discrimination is affirmed. 2. The Tribunal's second order that the Respondent is to pay the Applicant's costs of these proceedings is set aside. The question of costs is remitted to the Tribunal for consideration on the merits. I HEREBY CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF THE ADMINISTRATIVE DECISIONS TRIBUNAL. 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.