Trau v The University of Sydney [2007] NSWADT 92

CITATION: Trau v The University of Sydney [2007] NSWADT 92

DIVISION: Equal Opportunity Division

APPLICANT PARTIES: Jerzy Trau RESPONDENT The University of Sydney

FILE NUMBER: 071025

HEARING DATES: 11 April 2007

SUBMISSIONS CLOSED: 11 April 2007

DATE OF DECISION: 18 April 2007

BEFORE: Hennessy N - Magistrate (Deputy President)

CATCHWORDS: Application for leave to proceed

MATTER FOR DECISION: Preliminary matter

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977

IW v City of Perth (1997) 191 CLR 1 CASES CITED: PC v University of New South Wales (No 2) [2006] NSWAADTAP 54 Sims v The Age Company Ltd [2000] VCAT 2307 Xu v Sydney West Area Health Service, [2006] NSWADT 3

APPLICANT In person REPRESENTATION: RESPONDENT J Wright, solicitor

ORDERS: Leave is refused.

REASONS FOR DECISION Background 1 Mr Trau is asking for the Tribunal's permission (or leave) to go ahead with a complaint of race discrimination against The University of Sydney. The Acting President of the Anti-Discrimination Board declined the complaint as lacking in substance. When the Acting 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 On 11 June 2006, Mr Trau says he submitted a letter for publication to the Editor, Sydney Alumni Magazine, by facsimile. The content of the letter was as follows: It was interesting to read in the Winter 2006 issue the Chris Rodley's article about Simon Ho and the creationists' response to his discovery as well as the Rachel A Ankeny's article on intelligent design and Christian fundamentalism. The most important part of a religion being ethics the essential point in the matter science v. religion is the difference between Christian ethics based on belief and the Jewish one based on behaviour. Dr Jerzy Trau (former lecturer in Marine Studies, SU) 3 The letter was in response to two articles published by the Magazine in relation to intelligent design and stem cell research. Mr Trau complained to the President of the Anti-Discrimination Board that the University of Sydney did not publish the letter because of the editor's "anti-Semitic views". The University of Sydney's response was that the letter was not published because the University had no record of receiving it. Even if it had been received, the University said that it would not have been published because it was not clear, succinct and well-written. 4 In declining the complaint as lacking in substance, Acting President Wing stated that: The complainant provided insufficient information to support his allegations that the letter was not published because of anti-Semitic views of the editor of the Magazine or because of the anti-Semitic policies followed by the Magazine; and (b) the Respondent provided clear and cogent reasons as to why the letter was not published. 5 Mr Trau requested that his complaint be referred to the Tribunal: AD Act , s 93A. Approach to determining whether to grant leave 6 In Xu v Sydney West Area Health Service, [2006] NSWADT 3 at [18], the Tribunal set out the approach to be taken to applications for leave under s 96 of the AD Act: 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. Legislation provisions 7 That provisions which relate to Mr Trau's substantive complaint are s 19, s 7 and s 4 of the AD Act. Section 19 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. 8 Discrimination on the ground of race is defined in s 7 to include treatment that is "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". Race is defined in s 4 to include "ethno-religious origin. I accept, for the purpose of these proceedings, that Mr Trau is Jewish and that being Jewish falls within the definition of "ethno-religious" origin. Prospects of success 9 To succeed in his complaint, Mr Trau would have to prove that The University of Sydney: (a) provides a service of publishing letters to the editor of the Sydney Alumni Magazine; (b) has refused to provide Mr Trau with that service; (c) in refusing to provide Mr Trau with that service the University has treated him less favourably than they would have treated a person who was not Jewish; and that (d) at least one of the reasons for refusing to provide the service was that Mr Trau is Jewish. 10 A critical issue if the complaint went to hearing would be whether the University is providing a service to Mr Trau, and other subscribers to Sydney Alumni Magazine. "Services" are defined in s 4 of the AD Act to include: (a) services relating to banking, insurance and the provision of grants, loans, credit or finance, (b) services relating to entertainment, recreation or refreshment, (c) services relating to transport or travel, (d) services of any profession or trade, (e) services provided by a council or public authority, (f) services consisting of access to, and the use of any facilities in, any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not. 11 That definition does not cover the publication of letters in a newspaper, but as the definition is not exhaustive, that is not the end of the matter. I agree with the University's submission that in determining whether it has refused to provide a service, ". . . it is necessary to identify with precision what service has allegedly been refused to that person and what service or services the alleged discriminator provides": IW v City of Perth (1997) 191 CLR 1 at 16-17. Mr Trau did not identify the service he had been refused, but presumably it was publication of letters to the editor. The University submitted that the essential feature of the service it provides is the publication and distribution of the Sydney Alumni Magazine, not the publication of letters to the editor: Sims v The Age Company Ltd [2000] VCAT 2307. The University added that Mr Trau had not been refused any 'service' as contemplated by the AD Act . While it is not necessary or appropriate for me to decide whether the University provides a service of publishing letters to the editor, I doubt whether that activity can be characterised as a 'service' within the meaning of that term in the AD Act . 12 If Mr Trau were able to satisfy the Tribunal that the University provides a service of publishing letters to the editor, the next question would be whether the University has refused to provide him with that service. For the purposes of these proceedings I have assumed, contrary to the University's position, that the University received Mr Trau's letter by facsimile on 11 June 2006. If that is the case, because the University did not publish the letter, it has refused to provide Mr Trau with a service. 13 Next, the Tribunal would have to address the question of whether, in refusing to provide Mr Trau with that service, they have treated him less favourably than they would have treated a person who was not Jewish. Mr Trau provided no evidence, other than the letter itself, that the editor, or anyone else involved with the publication of the Magazine, knew Mr Trau was Jewish. The letter merely sets out Mr Trau's opinion that Christian ethics are based on belief, while Jewish ethics are based on behaviour. No preference is apparent in the letter for either point of view. The University's position, that letters are published only if they are clear, concise and well written, is a much more feasible basis for rejection than any knowledge or presumption that Mr Trau was Jewish. Substantial reason for leave to be granted 14 The only basis on which Mr Trau suggested that leave should be granted was that the University should publish letters which give the full range of opinions on a particular topic. He said that the University had published letters expressing a fundamentalist Christian view and a neutral view on the issue of stem cell research. According to Mr Trau the University should also have published his view, which he said was to the effect that there is a unified Jewish view which was accepting of stem cell research. Conclusion 15 I refuse to grant leave in this case because Mr Trau has been unable to demonstrate a substantial reason for leave being granted. Contrary to Mr Trau's submissions, his letter is not to the effect that there is a unified Jewish view which was accepting of stem cell research. Furthermore, the AD Act does not oblige editors to publish a comprehensive range of opinions on a particular topic in the letters column. The AD Act is merely designed to ensure that an individual is not discriminated against on the ground of race when seeking access to goods or services. Furthermore, the complaint does not have reasonable prospects of success given the doubt as to whether the University provides a "service" of publishing letters to the editor. Even if it does provide such a service, Mr Trau has no direct evidence, nor any evidence from which an inference can be drawn, linking the alleged refusal to publish his letter with the fact that he is Jewish. Costs 16 The University applied for a costs order against Mr Trau pursuant to s 110 of the AD Act. That provision states that: (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. 17 According to the University the circumstances that justify an order for costs are as follows: (a) the complaint is unmeritorious and without reasonable prospects of success because it has no tenable basis in fact, there being no evidence linking the alleged treatment with the ground of discrimination; (b) the complainant vexatiously persisted in pursuing the proceedings by requesting that the complaint be sent to the Tribunal even though he had been made aware that he had provided insufficient information to support his allegation and it was therefore lacking in substance; (c) there is an element of serious unfairness in the manner in which the complainant persisted in pursuing the complaint despite the fact that he should have known, or does know, that his complaint was misconceived and unjustified. This knowledge should have been, or was in fact, drawn from the repeated requests to the complainant from the Board for information supporting the allegations, as well as President Wing's declining of the complaint as lacking in substance. As was stated in PC v University of New South Wales (No 2) [2006] NSWAADTAP 54, at [28], '[t]here comes a time when such persistence in the face of information, knowledge and reason, must be reflected by a costs order that permits the respondent to recover at least a reasonable portion of the expense to which it has been forced over the history of the matter; and (d) the Respondent has been put to the cost of meeting a case in relation to this hearing despite the fact that the complaint has no reasonable prospects of success. 18 We do not consider that the circumstances of this case justify an order for costs. Mr Trau has merely exercised his right to have his complaint referred to the Tribunal in circumstances where it has been declined by the President of the Anti-Discrimination Board: AD Act , s 93A. Without legal advice or representation he cannot be expected to appreciate that his complaint has no reasonable prospects of success. Furthermore, he should not be disadvantaged in the circumstances of this case by failing to accept the President's or the University's view of his complaint. Unlike the situation in PC v University of New South Wales (No 2) [2006] NSWAADTAP 54 this is not a case where Mr Trau has persisted unreasonably in the face of information, knowledge and reason.