Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Chen v Premier Motor Services Pty Ltd (No 2) [2018] NSWCATAD 175 Hearing dates: 12 June 2018 Date of orders: 08 August 2018 Decision date: 08 August 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: Dr J Lucy, Senior Member Decision: Leave to proceed with the complaint of victimisation is refused. Catchwords: ANTI-DISCRIMINATION – Where victimisation complaints declined by President of Anti-Discrimination Board as lacking in substance – Application for leave to proceed with complaints -- Whether fair or just to grant leave Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: Bacirongo v ACL Pty Ltd [2011] NSWADT 12 Briginshaw v Briginshaw (1938) 60 CLR 336 Carroll v Department of Family and Community Services [2015] NSWCATAD 82 Chen v Premier Motor Services Pty Ltd t/as Premier Illawarra [2018] NSWCATAP 142 Chen v Premier Motors Service Pty Ltd t/as Premier Illawarra [2017] NSWCATAD 342 Jones v Ekermawi [2009] NSWCA 388 Pribicevic v State of New South Wales (Department of Family and Community Services) [2014] NSWCATAD 94 Category: Procedural and other rulings Parties: Chin-Kuang Chen (applicant) Premier Motor Services Pty Ltd (respondent) Representation: Counsel: Mr P King (respondent) Solicitors: Applicant (self-represented) Australian Public Transport Industrial Association (respondent) File Number(s): 2018/00129586 REASONS FOR DECISION 1. Mr Chen complained that Premier Motor Services Pty Ltd, trading as Premier Illawarra ("Premier Illawarra") victimised him in breach of the Anti-Discrimination Act 1977 (AD Act). The President of the Anti-Discrimination Board ("President") declined his complaint as lacking in substance: AD Act, s 92(1)(a)(i). 2. Mr Chen applied to the Tribunal for leave to proceed with his complaint in the Tribunal. 3. The Tribunal may give Mr Chen permission for his complaint to go ahead if it is fair and just to do so: Jones v Ekermawi [2009] NSWCA 388; AD Act, s 96(1). The onus is on Mr Chen to satisfy the Tribunal that leave should be granted: Bacirongo v ACL Pty Ltd [2011] NSWADT 12 at [2]; Pribicevic v State of New South Wales (Department of Family and Community Services) [2014] NSWCATAD 94 at [3]. 4. I have decided not to give Mr Chen permission for his victimisation complaint to go ahead because it is highly unlikely that he would be able to substantiate it. Background 1. Mr Chen lodged a complaint with the Anti-Discrimination Board ("Board"), alleging race discrimination in the provision of goods and services. The President referred the matter to this Tribunal and it was dismissed (Chen v Premier Motors Service Pty Ltd t/as Premier Illawarra [2017] NSWCATAD 342). Mr Chen's appeal against that decision was also dismissed (Chen v Premier Motor Services Pty Ltd t/as Premier Illawarra [2018] NSWCATAP 142). 2. The substance of Mr Chen's complaint was that Premier Illawarra had discriminated against him when its bus drivers deliberately overshot or undershot the bus stop at which he was waiting to board the bus. He said that they did this because he is of Asian appearance. 3. Mr Chen alleged in a further complaint to the Board that, after he had made the complaint of racial discrimination, Premier Illawarra subjected him to ongoing detriments. These were said to be: 1. Premier Illawarra provided him with permission to photograph bus driver IDs then later contacted the Police about his conduct; 2. Premier Illawarra caused bus drivers to have an irrational fear of him; 3. Bus drivers prevented him from boarding the bus until they had removed their ID; 4. Bus drivers objected to being photographed and filmed by him; 5. Premier Illawarra failed to entertain further complaints Mr Chen made about overshooting and about bus drivers not wearing their IDs; 6. Premier Illawarra tracked and archived his travels on the bus through surveillance systems. 1. Mr Chen also said in oral submissions that part of the detriment he was subjected to was witnesses giving false testimony at the hearing of his racial discrimination proceedings in the Tribunal. 2. Mr Chen said, in oral submissions, that the "key to the case" was Premier Illawarra telling Mr Chen he could take pictures of drivers' IDs, then later calling the police in response to Mr Chen's conduct. Victimisation complaint 1. If Mr Chen's victimisations complaints were to proceed, Mr Chen would have the onus of establishing that he had been victimised. Section 50(1) of the AD 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." 1. In summary, to prove victimisation, Mr Chen would have to prove that, in the period of the complaint, between 24 September 2016 and 12 October 2017: 1. he did one or more of the things listed in (a) – (d): (the trigger); 2. the respondent subjected him to a detriment; and 3. the detriment was on the ground that Mr Chen did one of the things listed in (a) – (d): (causation) (see Carroll v Department of Family and Community Services [2015] NSWCATAD 82 at [24]). Trigger 1. There is no dispute that Mr Chen lodged a complaint of discrimination with the Board, so that there was a "trigger." The other two matters are, however, contested. Detriment 1. I will assume, for the purposes of this leave application, that if leave were granted for the complaint to proceed, Mr Chen would be able to establish that: 1. Premier Illawarra provided him with permission to photograph bus driver IDs then later contacted the Police about him; 2. one or more bus drivers employed by Premier Illawarra prevented him from boarding a bus until they had removed their ID; 3. one or more bus drivers employed by Premier Illawarra objected to being photographed and filmed by him; 4. Premier Illawarra refused to entertain further complaints made by Mr Chen about overshooting and about bus drivers not wearing their IDs; 5. Premier Illawarra tracked or recorded his travels on the bus, to some degree. 1. I consider that Mr Chen would have great difficulty in establishing, on the evidence before the Tribunal, that Premier Illawarra caused bus drivers to have an irrational fear of Mr Chen. The word "irrational" is a strong one, and there is evidence to suggest that Mr Chen's conduct was, at times, intimidating. In any event, it is unlikely that Mr Chen could persuade the Tribunal that a cause of any fear of him held by the bus drivers was Premier Illawarra. 2. I also consider that it is very unlikely that Mr Chen would be able to establish that the respondent's witnesses false gave testimony at the hearing of his racial discrimination proceedings in the Tribunal. Mr Chen's allegation that they did is a very serious one. The main "false" factual issue he referred to in the leave hearing was a witness saying she felt intimidated by him, which he said was demonstrably wrong. Whilst the Tribunal is not bound by the rules of evidence, it is likely that it would be mindful of the principle that "[t]he seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal" (Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362). 3. Mr Chen said that, during the hearing of his racial discrimination proceedings, he did not have time to discredit the respondent's witnesses. The Tribunal did not make any comment, in its decision, to indicate that it did not regard them as witnesses of truth. In these circumstances, Mr Chen's complaint that they gave false testimony is very unlikely to be accepted. It is also questionable whether giving false testimony in the proceedings a person has brought, is subjecting the person to a detriment within the meaning of s 50 of the AD Act. Causation 1. The main weakness in Mr Chen's victimisation complaint is that there is little evidence to suggest that Premier Illawarra subjected him to any of the alleged detriments referred to above on the ground that he made a racial discrimination complaint about Premier Illawarra. 2. In its response to the Board, Premier Illawarra said that it reported Mr Chen's actions to the police because the filming of drivers whilst they are working had serious potential ramifications for their safety and the safety of their passengers. It claimed that it was also an invasion of the drivers' privacy. Premier Illawarra described Mr Chen as "constantly harassing" the drivers and said this had caused "great angst amongst the workforce." These views provide a plausible explanation for the conduct of the drivers and Premier Illawarra, whether or not it is accepted that their perceptions are accurate. 3. On the evidence before me, it appears that the most likely reason for drivers removing their IDs is that they did not want Mr Chen to identify them and/or photograph them with their ID and/or that they felt threatened by him. The most likely reason for drivers objecting to being filmed and photographed is that they do not like this and/or considered it an invasion of their privacy and/or felt threatened. 4. Mr Chen denies that he was continually photographing the drivers' IDs. However, he says that the drivers were retaliating against his investigation of them when he took photographs of the bus plates for reporting purposes. This does not appear to be consistent with the evidence they gave in the Tribunal. Even if he could establish that they were retaliating against his investigation, he would have to establish that his investigation was captured by one of the paragraphs of s 50 (that is, (a) to (d)). He has not explained how this is so. 5. Premier Illawarra's refusal to entertain Mr Chen's complaints was said to be on the basis that it considered Mr Chen to be a vexatious complainant. Mr King said, from the bar table, that Transport for NSW had determined him to be such a complainant. Mr Chen appeared to accept that Transport for NSW had done so, although he denied being a vexatious complainant. In these circumstances, it would be very difficult for Mr Chen to establish that Premier Illawarra's failure to respond to his complaints was because he made a complaint of racial discrimination against Premier Illawarra. 6. Some recording of Mr Chen's travels occurred as a result of Premier Illawarra's use of CCTV cameras. These were in general use and not specifically directed at Mr Chen. Mr Chen alleged that some of the recording of him had been deleted, but there is insufficient to suggest this occurred as a result of Premier Illawarra targeting Mr Chen. Mr Chen also alleges that a particular driver reported his presence on the bus to Premier Illawarra on a particular occasion. Mr Chen has not provided evidence which would persuade a Tribunal that the reporting was because he had made a discrimination complaint, and it is doubtful in any event that this constitutes subjecting him to a detriment. 7. Mr Chen has raised other matters in his lengthy submissions to the Board and to the Tribunal, but none of them provide persuasive evidence that he has been victimised as a result of his discrimination claim or for any other reason recognised by s 50 of the AD Act. 8. Given the lack of evidence that Mr Chen's racial discrimination claim was a reason for Premier Illawarra's alleged conduct towards Mr Chen, he is unlikely to be able to discharge his onus of establishing that he was victimised by or on behalf of Premier Illawarra. Conclusion 1. For these reasons, the complaint of victimisation lacks substance and it is not fair or just for it to proceed. ORDER 1. Leave to proceed with the complaint of victimisation is refused. ********** 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: 08 August 2018