Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Trapman v Evatt [2015] NSWCATAD 219 Hearing dates: 25 March 2015, 21 May 2015 Date of orders: 22 October 2015 Decision date: 22 October 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: R Perrignon, Senior Member J Newman, Member N Hiffernan, Member Decision: Application dismissed Catchwords: Discrimination on grounds of race – allegation of direct discrimination in the provision of goods and services – whether respondent barrister referred to the applicant as 'you abo's' in private conference Legislation Cited: Anti-Discrimination Act 1977 Category: Principal judgment Parties: William James Trapman (Applicant) Clive Evatt (Respondent) Representation: Counsel: W Trapman (Applicant in person) C Evatt (Respondent) Solicitors: File Number(s): 1410402 Reasons for decision 1. The applicant Mr Trapman is an Aboriginal man from Brewarrina in New South Wales. On 17 February 2014, he complained to the Anti-Discrimination Board that Mr Clive Evatt, barrister-at-law, had discriminated against him on the grounds of his race in the provision of legal services. He complained that in a conference with Mr Evatt and another barrister, Ms Hawkins, concerning a defamation case in which Mr Trapman was the Defendant, Mr Evatt had said to him, "I don't know what to do with you abo's." 2. Mr Trapman says, and the Tribunal accepts, that the term 'Abo' was and is deeply offensive to him as an Aboriginal person. He says that in using the term to describe him, Mr Evatt treated him less favourably than he treated or would treat other persons not of Aboriginal race in the same or similar circumstances, in the terms on which Mr Evatt provided legal services. It is therefore a claim of direct discrimination. 3. No complaint of racial vilification was referred to the Tribunal by the Anti-Discrimination Board. Section 20C of the Anti-Discrimination Act 1977 prohibits racial vilification by a public act, as defined. Mr Trapman alleges that the words were in question uttered in a private conference. 4. Mr Evatt denies that he said the words alleged or any similar words. He says that, even if he had said them, they could not amount to discrimination. Legislation 1. Section 7 of the Anti-Discrimination Act 1977 provides: (1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if the perpetrator: (a) on the ground of the aggrieved person's race …, 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 …. 1. Section 19 provides: 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. Issues for determination 1. The issues for determination by the Tribunal may be summarised as follows. 1. Whether Mr Evatt said the words alleged or words to that effect, in conference with Mr Trapman and Ms Hawkins on a date in June 2013. 2. If he did, whether in doing so he treated Mr Trapman less favourably than he treated or would have treated other non-Aboriginal persons in the same circumstance or circumstances not materially different on the grounds of his race, in the terms on which he provided legal services. Mr Trapman's evidence 1. Mr Trapman gave evidence by way of written statements. He also gave oral evidence. He was cross-examined. 2. Mr Trapman said that he is a 59-year old Aboriginal man from Brewarrina. In about June 2013, he met with Mr Evatt in his chambers. The meeting was arranged by another barrister, Ms Hawkins, who Mr Trapman had known for fifteen years and regarded as a friend. He said the purpose of the meeting was to ask Mr Evatt to represent him in defamation proceedings which had been brought against him by two solicitors, Messrs Edwards and Wardell. At that time, he says, he had no income. His Centrelink payments had been cancelled. He was appealing from a decision of the Workers Compensation Commission. The details of that decision are not before the Tribunal. 3. The Tribunal did have the benefit, however, of seeing a Deed of Release between Mr Trapman and his former employer, Clexan Peak Pty Limited, executed in 2009. It recited that, on 29 June 2007 Mr Trapman had lodged a complaint with the Human Rights and Equal Opportunity Commission to the effect that, in the course of his work for Clexan from 2006 to 2007, Mr Trapman had been the victim of racially discriminatory statements by employees of Sydney Water, and that he commenced proceedings in the Federal Magistrates Court on 25 July 2008. The Deed provided for the payment of $3,000 in full satisfaction of the claim against Clexan. A receipt for the $3,000, signed by Mr Trapman on 15 July 2009, was also in evidence. The solicitors for Clexan were Messrs Edwards and Wardell. 4. Mr Trapman explained in his evidence before this Tribunal that he felt he had been tricked into releasing his rights to workers compensation in return for the payment of $3,000. On the Tribunal's reading of it, the Deed of Release did not purport to release workers compensation rights. 5. Mr Trapman said that in June 2013, he attended Mr Evatt's chambers with Ms Hawkins. The first thing that Mr Evatt said after Mr Trapman sat down was, "I don't know what to do with you Abos." 6. Mr Trapman says he felt 'gutted' by those words. He then said to Mr Evatt, 'That is the most derogatory term you can use towards an Aboriginal person.' 7. He said there was then silence, after which Ms Hawkins said to Mr Evatt words to the effect, "You should never use that word." 8. According to Mr Trapman, the meeting proceeded and the defamation case was discussed. Mr Evatt suggested that another barrister, Mr Rasmussen, be retained to work on the case with him. After about 15 minutes Mr Trapman left the chambers with Ms Hawkins, who said to him words to the effect, "Old Clive shouldn't have sad what he said." 9. Mr Trapman said, and the Tribunal accepts, he is a proud Aboriginal man. He said that he felt Mr Evatt was saying that all his people were seen as problems or troublemakers and are not accepted, and never will be. He said he did not reject Mr Evatt's offer to act for him without fee because his friend, Ms Hawkins, had arranged for it, and he did not feel he could disappoint her. He said that most of the work on his case was done by Mr Rasmussen, and he was surprised and disappointed to see Mr Evatt appear for him at mediation with Mr Rasmussen. 10. There is no dispute that the mediation resulted in a settlement. The hand-written terms of settlement were before the Tribunal. They provided that the parties would use reasonable endeavours to revoke the apprehended violence orders against Mr Trapman, and that if they were revoked, short minutes of order would be handed up in the Supreme Court defamation proceedings dismissing those proceedings on Mr Trapman giving certain written undertakings, including not to publish statements alleging that the solicitors concerned were corrupt. The terms of settlement bore the signatures of Mr Trapman and the two solicitors concerned. The Short minutes of order and undertakings were signed by Mr Trapman and Mr Evatt, among others. 11. Some months later, Mr Trapman said, he spoke to Mr Rasmussen in Martin Place. He told Mr Rasmussen, "I am going to get a flag and put it outside Mr Evatt's office to say that he is a racist." He said that Mr Rasmussen laughed. 12. Mr Trapman also told the Tribunal that he had appeared before the Supreme Court after the settlement with a view to reinstating the apprehended violence orders against him. As the Tribunal understands it, his purpose was to contest the allegations which had been made in support of the orders. He also said he had gone before a magistrate with the same purpose. There is no evidence, however, that he was successful in having the orders reinstated. 13. After Mr Evatt had given oral evidence (referred to below) to the effect that Aboriginal people sometimes use the term "abo" in conversation, Mr Trapman filed a further statement, denying that they did so, and affirming that Aboriginal people "would never ever think about using that derogatory term "Abo" towards another Aboriginal person." He tendered a statement of Mr Bellear, chairman of the Aboriginal Medical Service, Redfern, who affirmed that "It is never used by Aboriginal people, and never will be acceptable to Aboriginal people". He tendered a statement of a journalist and author, Mr McMullen to the effect that in fifty years of journalism he had never observed "an Indigenous person use the word "Abo" to an Aboriginal or Torres Strait Islander person." Mr Trapman produced a statement by Mr Georgatos who, despite having visited hundreds of Aboriginal communities over decades, had never heard the term used by Aboriginal persons or Torres Strait Islanders. 14. Mr Trapman also answered Mr Evatt's observation that there had been a significant delay between the alleged utterance in June 2013 and the making of a complaint on 17 February 2014, by observing that he had been very upset by the death on New Year's Day in 2013 of Mr Trapman's father, who the Tribunal accepts was a prominent and highly regarded member of the Brewarrina community, of whom Mr Trapman was justifiably proud. Mr Evatt's evidence 1. Mr Evatt gave evidence by way of a written statement, and oral evidence. He was cross examined. He said that in 2013, Mr Trapman was the Defendant in a defamation action brought against him by solicitors Michael Edwards and Timothy Wardell and by their firm, Edwards Michael Pty Limited. They alleged that Mr Trapman had defamed them by displaying a sign at the entrance to their offices in Elizabeth Street, Sydney, proclaiming that they were corrupt. Before Mr Trapman consulted Mr Evatt, the Plaintiffs had obtained apprehended violence orders against Mr Trapman preventing him from coming within 100 metres of their premises for five years. 2. Mr Evatt's recollection was that Ms Hawkins of counsel arranged for Mr Trapman to confer with Mr Evatt in June 2013. At the conference, Mr Evatt took instructions, and agreed to act without fee. There was no instructing solicitor. Mr Evatt recalled that Ms Hawkins was present at the conference. 3. He denied having said "I don't know what to do with you Abos". He said he did not denigrate Mr Trapman in any way. He said Mr Trapman returned to confer with him five more times, the first time being the next day. 4. On 3 July 2013, Mr Evatt appeared for Mr Trapman with Mr Rasmussen of counsel at mediation before Registrar Flaskas of the Supreme Court. The settlement reached on that occasion by the parties is described above. 5. Mr Evatt said that Mr Trapman thanked him for the result, shook hands and offered to pay him back $80 that Mr Evatt had provided him at conferences by way of lunch money. He said Mr Trapman had not complained to Mr Evatt about anything said by Mr Evatt. 6. Mr Evatt observed that, if he had denigrated Mr Trapman at conference in June 2013, it was hard to understand why he would wait until 17 February 2014 before complaining to the Anti-Discrimination Board. He suggested that Mr Trapman may have changed his mind about the settlement in July 2013, and was blaming Mr Evatt for it. 7. The suggestion that Mr Trapman had changed his mind about the wisdom of the settlement is consistent with Mr Trapman's statement to the Tribunal that he had gone to the trouble of appearing in the Supreme Court and in the Local Court with a view to setting part of it aside, so that he could revivify the contest of fact in respect of the application for apprehended violence orders. We accept that he did change his mind to that extent. 8. Mr Evatt said that he had acted for Aboriginal persons for 35 years on a pro bono basis or on the basis of a contingency fees agreement. He represented Aboriginal Plaintiffs in civil claims assisted by the Aboriginal Legal Services. In one such case, he had acted for Mr Trapman. He said there had never been a complaint about his treatment of Aboriginal persons or his conduct toward them. 9. In cross-examination, he conceded that he had been struck off the role of legal practitioners many years ago, but had since been restored to the list. He explained that for many years he had run an art gallery featuring the work of Aboriginal artists, and had dealt personally with Aboriginal people in that capacity over a long period of time. He said he would not denigrate Aboriginal people. Evidence of Ms Hawkins 1. Ms Hawkins gave written and oral evidence. She explained that she was a barrister who had first come into contact with Mr Trapman when he was a client of the Aboriginal Legal Centre, and had sought her advice. We infer that she was either working for that Centre, or briefed by a solicitor there at the time. In June 2013, she said, he told her that he was the defendant in a defamation case, and that he was going to see Clive Evatt about it. She offered to come with him. So far as she could recall, she did not arrange the conference. She attended a conference in Mr Evatt's chambers in June 2013. The only persons present were Mr Evatt, and Mr Trapman and herself. 2. She denied that Mr Evatt said "I don't know what to do with you Abos" or anything similar. She said he made no racist comment to or about Mr Trapman. She denied that Mr Trapman had said, "That is the most derogatory term you can use towards an Aboriginal person" as he alleged. She also denied that she said "You should never use that word". She denied that she had told Mr Trapman, "Old Clive should not have said what he said". 3. Ms Hawkins was cross examined. She did not resile from her evidence. No allegation is made against her, and she is not a party to these proceedings. For those reasons, it is appropriate to give particular weight to her evidence. Mr Rasmussen's evidence 1. Mr Rasmussen of counsel gave both written and oral evidence. He was cross examined. He said that he had been asked by Clive Evatt to appear as junior counsel in a defamation case brought against Mr Trapman by a Sydney law firm. They had successfully obtained an injunction preventing him from displaying signs about them in the CBD, and an apprehended violence order. 2. Mr Rasmussen said he had appeared at mediation for Mr Trapman with Mr Evatt. He recalled that Mr Trapman had expressed his gratitude at the time for the settlement, shaking Mr Evatt's hand and saying words to the effect, "Thank you. I will try to find some money to pay you." 3. Mr Rasmussen said Mr Trapman had changed his mind about the settlement subsequently - Mr Rasmussen had observed him in the Supreme Court, attempting to set it aside. 4. Mr Rasmussen's chambers are in Martin Place. Since the mediation, he had observed Mr Trapman in Martin Place, almost every week day, holding a sign about misleading and deceptive conduct by an unnamed Sydney law firm, and recounting an inspiring dream which Mr Trapman had experienced on a train ride some years ago. Mr Rasmussen said that late in 2014, Mr Trapman said to him in Martin Place, "Evatt is a racist. I am going to put a sign up outside his office about it." Mr Rasmussen did not think that Mr Trapman was being particularly serious, having regard to Mr Evatt's reputation for assisting Aboriginal persons, and laughed. In cross examination, Mr Rasmussen did not resile from his evidence. Mr Friend's evidence 1. The Tribunal also had the benefit of reading a number of statements by Mr Friend, solicitor, who had acted from Mr Trapman in his case against Clexan Peak Pty Limited. He said that, following a court ordered mediation, Mr Trapman had settled the proceedings, without prejudice to any right he might have had to workers compensation. In respect of those rights, he was represented by another law firm. 2. Mr Friend also said that he had been employed as a solicitor with the Aboriginal Legal Service Limited from 1989 to 1997. In that time, he had often sought the advice of Mr Evatt for his clients and briefed him to appear in defamation, personal injury and contract matters. He considered that Mr Evatt had given his advice to his Aboriginal clients "gracefully and not only without complaint but with whole hearted enthusiasm". He noted that, much of the time, Mr Evatt had acted without fee. On Mr Friend's observation after many years of professional contact with Mr Evatt, he considered that Mr Evatt "had a deep affection and empathy for Aboriginal people." Mr Friend never observed any racist conduct or derogatory remarks to Aboriginal clients. 3. After leaving the Aboriginal Legal Service, Mr Friend has continued to act for Aboriginal clients as a solicitor in private practice. He has continued to brief Mr Evatt for advice on their behalf. Mr Evatt continued to give advice 'with grace and enthusiasm', often without fee. Though he accepted that Mr Evatt used colourful language to put clients at ease, he had never heard him describing Aboriginal people as "Abos", or speaking in a racist way. 4. He did note that, after acting for Mr Trapman without fee in a four day trial in the Federal Magistrates Court in 2009, Mr Trapman had rung his office several times to complain, saying words to the effect, "I am going to get all the aboriginal people to come and protest outside your office", and falsely accusing Mr Friend of falsifying Mr Trapman's signature on a document. We infer from the following that these were the proceedings against Clexan referred to above. 5. According to Mr Trapman, he made those allegations after appearing at the Workers Compensation Commission, where he was persuaded that he had released his rights to workers compensation by reason of the settlement with Clexan. 6. Mr Friend's evidence was uncontradicted, and we make findings in accordance with it. Consideration 1. Mr Trapman alleges that offensive remarks were made to him by Mr Evatt in conference in June 2013. All the evidence establishes that there were only three people present: Mr Trapman, Mr Evatt and Ms Hawkins. Both Mr Evatt and Ms Hawkins deny that the words complained of were said. Though Mr Trapman and Mr Evatt have an interest in the outcome of these proceedings, Ms Hawkins does not. There is no reason to doubt her version of what occurred. It corroborates in a compelling way the evidence of Mr Evatt. 2. In our view, it is also inherently unlikely that the words complained of were said. If Mr Trapman was the subject of overtly racist comment as he alleges, and was 'gutted' by it as alleged, and sought an apology without success as alleged, it is unlikely that he would have attended further conferences with Mr Evatt, or that he would have tolerated the perpetrator continuing to appear for him at mediation. The evidence that Mr Trapman did continue to attend further conferences with Mr Evatt is uncontradicted, and we accept it. The fact that he did so makes it unlikely that he was offended by racist comments as he alleges. We accept, however, that he would have been offended if the term "abo" had been used. The fact that he returned repeatedly to Mr Evatt's chambers makes it unlikely the terms was used at all. 3. Though much of Mr Trapman's cross examination of Mr Evatt and his witnesses was devoted to questions concerning why Mr Evatt was present at the mediation, it is beyond doubt that Mr Evatt did attend and represent Mr Trapman, and we are not satisfied that Mr Trapman objected, or did anything to stop him doing so. 4. We are satisfied that Mr Trapman thanked Mr Evatt for the outcome, and that he changed his mind later about the desirability of that outcome. It is not possible to say whether that inspired Mr Trapman falsely to allege that Mr Evatt had made a racist slur against him in conference. It may be that Mr Trapman has an honest, but mistaken, belief that Mr Evatt made some such remark, but for the reasons given, we are not satisfied that he did. 5. We accept Mr Trapman's evidence that he was deeply affected by the death of his father on New Year's Day 2013. That, however, did not prevent him from seeking counsel's advice in respect of defamation proceedings against him, preparing his case, appearing at mediation and giving instructions on a settlement which was highly advantageous to him. In those circumstances, it seems unlikely that it would have prevented him from lodging a complaint of racial discrimination, if the words alleged had been uttered. If the words complained of were uttered at all, the long delay in lodging a complaint is inexplicable. This, too, militates against a finding that the words were uttered. 6. In all the circumstances, the Tribunal is not satisfied that the words complained of were uttered by Mr Evatt at the conference in June 2013 or at any other stage. We note the excellent reputation that Mr Evatt enjoys as a barrister who has represented Aboriginal clients without fee or on a contingency basis for many years, and Mr Friend's observations as to the absence of any racist comments over that time. However, our decision is not based on that reputation, but rather on the inherent unlikelihood attending Mr Trapman's allegation, in light of what followed as set forth above, and having regard to the contrary evidence of the only two other eye witnesses, Mr Evatt and Ms Hawkins. 7. For those reasons, we are not satisfied that the claim of discrimination is made out, and the application is dismissed. As no costs order is sought, it is unnecessary to consider the question of costs. ********** 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: 22 October 2015