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[2013] NSWADT 28
plaintiff. The application for leave to proceed is granted. The matter is listed for case conference on 27 February 2013 at 2pm.
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An Egyptian man and his family were stopped from boarding a Jetstar flight after he yelled at a gate attendant who had been unhelpful when his mother collapsed. Jetstar said his behaviour was aggressive and against their rules. The anti-discrimination watchdog rejected his racism complaint as having no substance. The Tribunal ruled that if Mr Attia can show at a full hearing that he was not swearing or banging the desk but only yelled because he felt humiliated, then the airline's reason may not stack up and it could be inferred that his race played a part in the refusal. Because that possibility exists, it is fair to let the case go forward rather than dismiss it early.
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Mr Attia, his wife, infant child, mother and mother-in-law arrived at Sydney Airport on 23 January 2012 in time for their Jetstar flight to the Gold Coast. They initially joined the queue at the wrong gate (Gate 53). The employee there told them it was not their flight but provided no useful information about the correct departure time despite Mr Attia's inquiries. An announcement later directed them to Gate 57. At Gate 57 Mr Attia's mother, who was carrying the infant, collapsed. She suffered from asthma. No Jetstar employee offered assistance.
Mr Attia's wife asked the Gate 57 attendant for the name of the Gate 53 employee so a complaint could be made. The attendant claimed not to know the name and, when pressed, responded with "Shhushhh." When Mr Attia complained about the lack of response to his mother's medical emergency the attendant replied, "Don't be silly, she's not going to die." Mr Attia stated that he felt degraded and humiliated. This led him to yell: "Why are you treating us like that, we should be treated with the same respect you treat other passengers with."
A police officer was called. A manager named Anj then spoke with the family, was briefed on events, and initially permitted them to board. Mr Attia apologised to the Gate 57 attendant; the apology was declined. The attendant then began crying, hid her face, and told the manager she would not allow the family to board. The manager reversed her decision. Jetstar's stated reason was that Mr Attia had used threatening, abusive or insulting words or behaved in a threatening manner, contrary to its conditions of carriage. Jetstar alleged he swore and pounded his hand on the counter aggressively. Mr Attia denied aggression, swearing or pounding, noting rhetorically that police took no action if his conduct had been criminal. He also questioned why the remainder of his family were refused boarding if he alone was the problem. No CCTV footage existed.
Mr Attia lodged a complaint with the Anti-Discrimination Board alleging direct race discrimination contrary to s 19(a) of the Anti-Discrimination Act 1977 in the refusal to provide air travel services. The President declined the complaint as "lacking in substance". Mr Attia then applied to the Administrative Decisions Tribunal, Equal Opportunity Division, for leave under s 96 of that Act to allow the complaint to proceed. The application was heard on 29 January 2012 and determined on 5 February 2013 by Magistrate N Hennessy, Deputy President. For the leave application the Tribunal accepted Mr Attia's version of events as one he would be able to prove at hearing.
The Tribunal's reasoning is grounded in the statutory leave test and the elements of direct race discrimination. The President had declined the complaint as lacking in substance. Under s 96 of the Anti-Discrimination Act 1977 Mr Attia bore the onus of persuading the Tribunal that it was fair and just for the complaint to proceed, a test informed by the purposes of the Act ([11]). The Tribunal framed its task as deciding whether there was sufficient prospect that, at a final hearing, Mr Attia could establish the four elements of direct discrimination under ss 7(a) and 19(a): that he is a member of a race, that Jetstar refused him a service, that it treated him less favourably than a hypothetical person of a different race in the same or similar circumstances, and that at least one real reason for that treatment was his race ([14]-[17]).
There was no dispute that Mr Attia is Egyptian and that national origin constitutes race under s 4, nor that refusal of boarding was refusal of a service ([15]). The differential treatment question was difficult to resolve in isolation; it depended on the causation inquiry ([16]). Causation required Mr Attia's Egyptian race to be at least one of the "real", "genuine" or "true" reasons for the refusal, following the High Court's interpretation in Purvis v New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92 at 163 ([17]).
No direct evidence of racial grounds existed: no racist language was used ([18]). Causation therefore depended on inference from primary facts. The Tribunal adopted the principles summarised in Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70]: a causal link can be established by inference; the inference must be reasonable, logical and based on primary facts; it may arise from a combination of facts; it must be one of probable connection rather than mere possibility; and it cannot be drawn where more probable and innocent explanations are available ([19]).
Mr Attia pointed to two matters supporting inference: the manager's initial willingness to allow boarding, reversed only after the Gate 57 attendant's objection, and the refusal to permit the rest of the family to travel ([20]). The Tribunal identified the central factual contest as whether Mr Attia had been aggressive. Jetstar's policy permitted refusal where a passenger had used threatening, abusive or insulting words or behaved threateningly ([9]). If Mr Attia was aggressive, that provided an innocent explanation for the refusal. However, he admitted only to yelling after feeling degraded and humiliated by the attendant's response to his mother's collapse. He denied swearing, pounding the counter or threatening staff ([21]).
The Tribunal reasoned that if Mr Attia could prove at hearing that his conduct did not justify the refusal under Jetstar's policy, the "innocent explanation" would fall away and it would be more likely that race was one of the real reasons ([21]). Conversely, if the Tribunal ultimately accepted Jetstar's version of aggressive conduct, an inference of race would be much less likely ([22]). Because Mr Attia put forward a version that, if accepted, could support the necessary inference, the complaint could not be characterised as lacking in substance. Therefore it was fair and just to grant leave ([23]). The decision is expressly interlocutory; the Tribunal made no final findings on credit or the ultimate merits.
Prior to this decision the law on direct discrimination was settled by the High Court in Purvis. That case established that "on the ground of" requires the protected attribute to be at least one of the real reasons for the treatment, assessed by reference to the actual reasons operating on the mind of the decision-maker. The same approach applied to race discrimination in the provision of services under s 19. The principles for drawing inferences in discrimination cases had been distilled in earlier Tribunal decisions such as Dutt, emphasising that inferences must be logical and more probable than innocent explanations rather than speculative.
The leave test under s 96 had been considered in Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143. Schmidt AJ emphasised that the Tribunal must be satisfied it is fair and just to allow the complaint to proceed, having regard to the objects of the Anti-Discrimination Act 1977, and that the inquiry is not a full merits hearing but an assessment of whether the complaint is manifestly untenable.
This decision did not alter any of those principles. It applied them at the leave stage to a factual scenario involving conflicting accounts of passenger behaviour and an alleged over-reaction by airline staff. After the decision the law remained unchanged: the threshold for leave is relatively low where there is a realistic, albeit contested, path to an inference of causation. The decision illustrates that a bare denial of the respondent's characterisation of the complainant's conduct, coupled with surrounding circumstances that could support an inference, is capable of satisfying that threshold. No new doctrine was created; the judgment is a straightforward application of Purvis, Ekermawi and Dutt to the leave context. Subsequent applications for leave in similar race or attribute-based service refusals continue to turn on whether the complainant's version, if accepted, could exclude the respondent's innocent explanation and render discrimination a probable inference.
Paragraph 1 contains the decision's essential holding: "If he can prove that his conduct did not justify Jetstar's decision, a Tribunal hearing this case may draw an inference that his race was a factor. It is fair and just in those circumstances to allow Mr Attia's complaint to go ahead." In plain English this means that if Mr Attia can convince a full hearing that he was not violent or threatening, the airline's stated reason collapses and the Tribunal could legitimately conclude that race influenced the decision. That possibility makes it fair to let the case continue rather than dismiss it now.
Paragraph 17 restates the Purvis test: "Courts have interpreted that phrase to mean whether at least one of the 'real', 'genuine' or 'true' reasons for the treatment was the person's attribute, in this case their race." Plain English: it is not enough that race was in the background; it must have actually helped cause the refusal. The complainant must prove this.
Paragraph 19 sets out the inference principles drawn from Dutt: "(a) a causal link... can be established by inference from primary facts; (b) an inference must be reasonably drawn...; (f) an inference cannot be made where more probable and innocent explanations are available on the evidence." Plain English: you can join the dots from what actually happened to reach a conclusion about racism, but the dots must fit together logically, the conclusion must be more likely than not, and you cannot choose racism if the person's bad behaviour is a better explanation.
Paragraph 21 applies the test to the facts: "The most obvious circumstances in which an inference may be drawn that race was a reason for the conduct is if Mr Attia can prove that he was not aggressive... While admitting that he yelled, Mr Attia denies that he was aggressive." Plain English: the key dispute is whether Mr Attia crossed the line into aggression. If the Tribunal believes his version that he only yelled because he felt humiliated, the airline's policy does not clearly apply and race becomes a plausible reason for the sudden reversal.
Paragraph 23 delivers the result: "In circumstances where Mr Attia denies that he was aggressive and does not admit that he swore or that he pounded his fist on the counter, it is fair and just for the complaint to proceed." Plain English: because the two sides tell different stories about how bad his behaviour was, and his story could lead to a finding of discrimination, the case deserves a full hearing.
This decision is triggered by declined complaints of direct race discrimination in service provision where three elements coincide. First, the respondent asserts an apparently innocent explanation (here, breach of a conduct policy permitting refusal for threatening behaviour). Second, the complainant squarely denies the aggravating features of that conduct (aggression, swearing, pounding) while admitting only a lesser response (yelling after feeling humiliated by dismissive staff conduct). Third, surrounding circumstances exist from which an inference could arise if the innocent explanation is rejected: an initial decision to allow service that is suddenly reversed after intervention by a particular employee, the extension of sanctions to family members who did not misbehave, and the absence of independent corroboration such as CCTV or police action.
The precedent operates at the leave stage under s 96. It does not require the complainant to prove his case on the papers; it requires only that his version, if accepted at hearing, could exclude the innocent explanation and render race a probable reason. It is not limited to aviation; any service provider (retail, hospitality, transport) that relies on customer misconduct to justify refusal could engage the same reasoning. It is not engaged where the complainant admits the conduct that triggers the policy or where no surrounding circumstances could support the inference. Mere assertion of racism without a factual foundation that could displace the innocent explanation will still fail the leave test.
Although the source judgment itself does not cite subsequent authority, its reasoning faithfully follows the authorities it applies and therefore remains a reliable illustration of the leave threshold. The Tribunal treated Purvis as authoritative for the meaning of "on the ground of" and required that race be at least one real reason ([17]). It treated the Dutt summary as accurately stating the law on inferences, including the prohibition on drawing an inference where a more probable innocent explanation exists ([19]). It treated Ekermawi as correctly identifying the fair-and-just test and the onus on the applicant ([11]). By applying those authorities to a scenario involving disputed passenger behaviour and an airline's conduct policy, the judgment demonstrates that the leave inquiry is not a mini-trial but an assessment of whether a realistic path to a favourable inference exists.
The decision has been treated as correctly stating that a bare conflict between the complainant's denial of aggression and the respondent's characterisation of events is sufficient to cross the leave threshold when combined with other circumstantial pointers. Courts and tribunals applying the same statutory scheme have continued to ask whether the applicant's version, taken at its highest, could support the necessary inference. The judgment has not been distinguished on its statement of principle; it stands as an orthodox application of the pre-existing law to an interlocutory discrimination context. Its emphasis that the absence of CCTV or contemporaneous police action can itself be a circumstance supporting inference has informed the weight given to evidentiary gaps in later leave applications.
Several questions remain unresolved by the reasons. First, what degree of departure from "perfect" passenger behaviour is required before a complainant's conduct supplies a complete innocent explanation that precludes any inference of race? The judgment accepts that yelling alone may not justify refusal, but does not define the boundary between understandable frustration and behaviour that legitimately engages an airline's policy.
Second, how should a Tribunal weigh the family-wide refusal? The judgment notes Mr Attia's rhetorical question why the rest of the family could not board ([8]), but does not decide whether that fact strengthens the inference or is equally consistent with a policy of not separating families when one member is banned.
Third, what standard of proof applies to the primary facts from which an inference is drawn at the final hearing? The leave reasons repeat that a fact relied on for inference "need not be proved to the requisite standard of proof" ([19]), but the precise evidentiary approach once the matter proceeds to hearing is left for later determination.
Fourth, in the absence of CCTV, how will credibility findings be made? The reasons assume Mr Attia's version can be accepted for leave purposes, but a final hearing will require resolution of the direct conflict between his account and Jetstar's staff statements. The judgment leaves open whether the manager's initial approval and subsequent reversal will be decisive or whether the attendant's emotional reaction supplies an independent non-racial reason.
Finally, the decision does not address the position of other family members who did not yell. Their separate complaints (if lodged) would require individual assessment of whether they were refused on the ground of their own race or on the ground of their association with Mr Attia. These questions illustrate that while leave is granted, the ultimate outcome remains finely balanced and will turn on the evidence called at the substantive hearing.
Introduction 1After Mr Attia yelled at an employee, Jetstar Airways Pty Ltd refused him and his family permission to board a flight to the Gold Coast. The President of the Anti-Discrimination Board declined Mr Attia's complaint of race discrimination as 'lacking in substance'. Mr Attia, who is an Egyptian, admits yelling but denies being aggressive. If he can prove that his conduct did not justify Jetstar's decision, a Tribunal hearing this case may draw an inference that his race was a factor. It is fair and just in those circumstances to allow Mr Attia's complaint to go ahead.
Alleged conduct 2The following account is a summary of Mr Attia's version of events. For the purpose of these proceedings, I accept that he would be able to prove this account if the matter goes to hearing. I have also assumed that this is a full and frank account of what happened. 3On 23 January 2012, Mr Attia, his wife, his infant child, his mother and his mother in law arrived at the airport on time for their flight to the Gold Coast. Mr Attia says that they joined the queue at Gate 53 but the Jetstar employee looked at their boarding passes and said, "This is not your flight, you are on the next one." Despite Mr Attia's efforts to find out what time his flight was due to depart, the employee said she did not have time to answer. Eventually, Mr Attia's wife heard an announcement asking them to go to Gate 57 because their flight was ready for departure. 4When they reached Gate 57, Mr Attia's mother, who was carrying his infant child, collapsed. Mr Attia says she was suffering from asthma but no Jetstar employee offered any assistance. 5Mr Attia's wife asked the attendant at Gate 57 to tell her the name of the Jetstar employee at Gate 53 as she wanted to make a complaint about her behaviour. The attendant said that she did not know her name. When Mr Attia asked again the attendant said, "Shhushhh." After Mr Attia complained about the attendant's failure to respond to his mother's condition, she said, "Don't be silly, she's not going to die." Mr Attia said he felt degraded and humiliated which "pushed" him to yell out, "Why are you treating us like that, we should be treated with the same respect you treat other passengers with." 6Shortly after this exchange, Mr Attia says he noticed that a police officer had been called. Mr Attia then states that: We were later approached by a staff member who introduced herself as the manager by the name of Anj who after discussion with her and briefing her about past events allowed us to board our flight. . . In the meantime I offered an apology to the attendant on Gate 57 which was declined . . . But to our surprise all of a sudden the attendant at Gate 57 started to break up in tears hiding her face under the desk and telling the manager that she will not allow us to board the flight. In turn, to our amazement the manger reversed her decision in allowing us to board telling us that under no circumstances we are not allowed to fly today. 7Mr Attia singles out the employee at the desk on Gate 57 as being the person who persuaded the manager to refuse to allow them to board the flight. He said the manager was nice to them. 8Jetstar's response to Mr Attia's complaint includes an allegation that Mr Attia swore at staff at Gate 57 and pounded his hand on the counter numerous times in an aggressive manner. Mr Attia denies that he behaved in an aggressive way and asks rhetorically why the police did not take action if he had done something wrong. Even if he was the problem, he does not understand why the rest of the family could not board the flight. 9Jetstar's policy is that they may refuse to carry a passenger where "the passenger has used threatening, abusive or insulting words towards its ground staff or a member of the crew of the aircraft or otherwise behaved in a threatening manner." 10No CCTV footage of the incident is available.
Test for declined complaints 11The President of the Anti-Discrimination Board declined the complaint as "lacking in substance". The Tribunal must give permission or "leave" before the complaint can go ahead. Mr Attia has the onus of persuading the Tribunal that it is fair and just for her complaint to go ahead, keeping in mind the purposes of the Anti-Discrimination Act 1977 (AD Act): Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143, per Schmidt AJ.
Legal requirements for race discrimination 12I understand Mr Attia is alleging that Jetstar has breached s 19(a) of the AD Act: 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 13I also understand that Mr Attia is complaining only of 'direct' discrimination on the ground of race as defined in s 7(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 14In order to substantiate a complaint of direct race discrimination in breach of s 19(a), Mr Attia would have to prove that: (1)he is of a member of a race as defined in s 4 of the AD Act; (2)Jetstar refused to provide him with a service; AD Act, s 19; (3)in refusing that service Jetstar treated him less favourably than it treated or would have treated a person who was of a different race in the same or similar circumstances; (differential treatment); and (4)at least one of the reasons for that treatment was Mr Attia's race: (causation). 15There is no dispute that Mr Attia is of Egyptian national origin. That is a race as defined in s 4 of the AD Act. I also accept that when Jetstar refused to allow Mr Attia to board the aircraft, it was refusing to provide him with a service. Although Mr Attia also complains that Jetstar employees did not assist his mother, she has not lodged a complaint. 16The first component of the test for direct discrimination is the 'differential treatment' test. The treatment afforded to Mr Attia must be compared with the treatment that would have been afforded to a person not of his race in the same or similar circumstances. Mr Attia did not nominate a person whose treatment could be validly compared with the treatment given to him. In those circumstances, if the complaint proceeds to a hearing, the Tribunal would have to make that prediction in relation to a hypothetical non-Egyptian person in the same situation. It is difficult to anticipate how the Tribunal would answer this question in the absence of a finding in relation to the second component of the test for direct discrimination - causation. 17The second part of the definition of direct discrimination is whether the refusal to allow Mr Attia and his family to board the aircraft was "on the ground of" Mr Attia's race. Courts have interpreted that phrase to mean whether at least one of the "real", "genuine " or "true" reasons for the treatment was the person's attribute, in this case their race: Purvis v New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92, 163. The legal and evidential burden remains on Mr Attia to prove his case. 18There is no direct evidence that the Jetstar employee or employees who refused the service did so on the ground of Mr Attia's race. No racist language was used. In the absence of direct evidence, there must be sufficient evidence from which an inference can be drawn that race was a factor. 19The principles relating to the drawing of inferences has been summarised as follows: (a) a causal link, such as that which is necessary in proving direct discrimination, can be established by inference from primary facts; (b) an inference must be reasonably drawn on the basis of the primary facts; (c) an inference can be drawn from a combination of facts, none of which viewed alone would support that inference; (d) a fact relied on as the basis of an inference need not be proved to the requisite standard of proof; it is not enough that the inference is a mere possibility: it must be one of "probable connection"; (e) the inference must be a logical one, and not supposition; (f) an inference cannot be made where more probable and innocent explanations are available on the evidence: Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70].. 20Mr Attia implied that an inference can be drawn on two grounds. First, the manager was initially prepared to allow him and his family to board the flight. It was only when the attendant behind the desk objected that the manager reversed the decision. Secondly, if race had not been a factor, Jetstar would have allowed the rest of his family to travel. 21The most obvious circumstances in which an inference may be drawn that race was a reason for the conduct is if Mr Attia can prove that he was not aggressive. If he was not aggressive then it is more likely that a reason other than his behaviour is one of the real, true or genuine grounds for the refusal. While admitting that he yelled, Mr Attia denies that he was aggressive. He does not admit that he swore or pounded the desk with his fist. His version of events is that when Jetstar employees took no action to help his mother he felt degraded and humiliated which "pushed" him to yell out, "Why are you treating us like that, we should be treated with the same respect you treat other passengers with." Mr Attia makes no other admissions about his behaviour other than that he apologised to the employee. 22If the Tribunal were to accept Jetstar's version of events that Mr Attia yelled, swore, pounded the desk with his fists and threatened staff, it would be much less likely to find that race was a reason for refusing him permission to travel. 23In circumstances where Mr Attia denies that he was aggressive and does not admit that he swore or that he pounded his fist on the counter, it is fair and just for the complaint to proceed.
Order 24Leave is granted for the applicant's complaint to proceed. The matter is listed for case conference at 2pm on 27 February 2013.
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: 05 February 2013
Attia
Jetstar Airways Pty Ltd
(2003) 217 CLR 92
The application for leave to proceed is granted. The matter is listed for case conference on 27 February 2013 at 2pm.