Djime v Kearnes (No. 2) (Human Rights) [2015] VCAT 2055

Under section 125(c) of the Equal Opportunity Act 2010 (Vic), I find that none of the claimed contraventions has been proven and so the application is dismissed.

Ms R Sharp of Counsel, instructed by Norton Rose Fulbright Australia

1. On 26 June 2015, I made orders dismissing 21 out of 27 of Mr Djime's claims of discrimination, sexual harassment, victimisation, racial vilification and human rights breaches against individual Victoria Police officers and Victoria Police as a whole.[1]
2. The orders made turned largely on the question whether, in the circumstances, the individual police officers or Victoria Police as a whole were providing services to Mr Djime and so whether he could make a claim under the Equal Opportunity Act 2010 (Vic) (EO Act). The decision also turned on the evidence given by Mr Djime at the hearing held on 10 and 11 March 2015 and 13 May 2015.
3. Having dismissed 21 of the claims made, I ordered that six matters were to proceed to further hearing. That further hearing was held on 5 and 6 October and 5 November 2015.
4. I have decided to dismiss each of the remaining claims.
5. I will first address some procedural matters.

1. At the preliminary hearing, Mr Djime gave evidence and he called witnesses. Neither he nor his witnesses were cross-examined at that time because the hearing proceeded on the basis that I was to decide whether all or any of the claims ought to be struck out taking his case at its highest.
2. Having decided that some claims could proceed to a full hearing, it was necessary for Mr Djime and his witnesses to be cross-examined. The respondents put Mr Djime on notice that they wished to cross-examine him and one of his witnesses, Mr Ibrahim Dienkha. Mr Djime did not make arrangements for Mr Dienkha to attend, contending that, if the respondents wished to cross-examine him, they ought to issue a summons. I explained to Mr Djime that the consequence of Mr Dienkha not attending for cross-examination may be that less weight would be given to his evidence. Mr Djime made no arrangements for his attendance despite that warning.[2]
3. Mr Djime was cross-examined and he cross-examined the witnesses called for the respondents. During the course of the further hearing, Mr Djime made reference to a number matters for the first time - at times Mr Djime explained or further described the relevant events and at times he made comments which amounted to variations on the existing allegations. Mindful that Mr Djime had been self-represented throughout the proceeding, I decided to allow the additional material to be admitted into evidence. That led to the respondents seeking leave to adduce further evidence from existing witnesses and to call further witnesses. Where relevant I have referred to that further evidence in these reasons.
4. At the conclusion of the hearing, orders were made for the parties to file and exchange written submissions and reply written submissions. In those filed and served by Mr Djime, he expressly declined to make submissions on the legal and factual issues before me. The documents contained allegations as to the conduct of a number people including myself, Ms Sharp of counsel, the respondent's instructing solicitors and various Victoria Police officers. I have put those matters to one side in making my decision.
5. I will now turn to the claims before me.

(i) A claim of discrimination arising from Mr Djime allegedly being left by police in the middle of nowhere on 15 May 2013 after an incident at Footscray railway station;

(ii) A claim of discrimination arising from comments said to have been made to Mr Gilberto Besanko by Sergeant Michael Kearnes on 18 September 2013 during the course of an incident at Sunshine;

(iii) A claim of discrimination arising from Sergeant Kearnes' request on 18 September 2013 that Mr Djime, rather than Mr G Besanko, leave premises in Sunshine;

(iv) A claim that, on 18 September 2013, Sergeant Kearnes was assisting or authorising discrimination by Mr G Besanko when Sergeant Kearnes allegedly evicted Mr Djime from the Sunshine premises;

(v) A claim of discrimination in respect of comments allegedly made by Sergeant Peter Drake to Mr Djime when he made the complaint on 18 September 2013; and

Alleged request to leave Sutton Street premises

(vi) A claim of discrimination arising from a request by police for Mr Djime to leave premises in Sutton Street, Reservoir in 2012.

1. All of the allegations are denied by the officers and Victoria Police. The respondents said that the evidence in respect of some of the incidents cannot support a finding that a service was provided under the EO Act.
2. It is convenient to note here that, on 10 March 2015, I made an order under section 160 of the EO Act granting leave to the Victorian Equal Opportunity and Human Rights Commission (Commission) to assist the tribunal as amicus curiae (friend of the court) in the proceeding. The Commission did not participate in the further hearing.

1. The EO Act is protective legislation that seeks to ensure persons with named attributes are not discriminated against because of those attributes in relation to specified activities or classes of activities. The protected attributes include race and physical features.[3]
2. The EO Act specifies areas of life in which discrimination is prohibited. Accordingly, in order to establish a breach of the EO Act, an applicant must point to an express prohibition which applies to the circumstances giving rise to the claim. Mr Djime said that the discrimination he complains of occurred in the context of the provision of services to him by Victoria Police and the named police officers.
3. The claim here is one of direct discrimination. So, what is claimed is that, contrary to section 44 of the EO Act, the respondents treated Mr Djime unfavourably because of one or more of the identified attributes.[4] Mr Djime said that the alleged instances of discrimination occurred on the basis of his attributes of race and physical appearance. Mr Djime was born in Mali and came to Australia in 2006. Mr Djime has dark skin and dreadlocks.
4. Section 44 of the EO Act prohibits discrimination in the context of the provision of services. It says:

(1) A person must not discriminate against another person -

(a) by refusing to provide goods or services to the other person; or

(b) in the terms on which goods or services are provided to the other person; or

(c) by subjecting the other person to any other detriment in connection with the provision of goods or services to him or her.

(2) Subsection (1) applies whether or not the goods or services are provided for payment.

1. It is not necessary for Mr Djime to show one or both of the attributes he relies on was the sole reason for the unfavourable treatment alleged but he must show that it was a substantial reason. Motive is irrelevant in determining whether or not a person discriminates.[5]
2. Mr Djime's claims include an allegation that a police officer authorised or assisted discrimination. That claim arises from section 105 of the EO Act which says, relevantly here, that a person must not request, instruct, induce, encourage, authorise or assist another person to engage in prohibited discrimination. Under section 106 of the EO Act, a claim may be brought against either the person who has breached the EO Act or the person who has authorised or assisted that breach.
3. The onus of proving that there has been a breach of the EO Act falls on Mr Djime. The standard of proof is on the balance of probabilities. What is required is for the tribunal to be satisfied that, overall, it is more probable than not that the events occurred as described and that the inferences sought to be drawn can reasonably be drawn from the facts as they have been found.
4. In cases of discrimination, the person engaging in the prohibited conduct does not ordinarily announce that fact. It is often necessary for an inference to be drawn from the evidence presented that the reason for the unfavourable treatment is the relevant attribute. The tribunal must be satisfied overall that the inferences sought to be drawn can reasonably be drawn from the facts as found.

1. The term 'services' is defined in section 3 of the EO Act as follows:

services includes, without limiting the generality of the word -

(a) access to and use of any place that members of the public are permitted to enter;

(b) banking services, the provision of loans or finance, financial accommodation, credit guarantees and insurance;

(c) provision of entertainment, recreation or refreshment;

(d) services connected with transportation or travel;

(e) services of any profession, trade or business, including those of an employment agent;

(f) services provided by a government department, public authority, State owned enterprise or municipal council-

but does not include education or training in an educational institution

1. In my earlier decision, I considered the above definition and a range of relevant cases. I set out the following summary which I again rely on as a guide in so far as I am required to consider whether, at the relevant points in time, Mr Djime was receiving a service:
   • Conduct which is helpful or beneficial for the individual is likely to be a service where it is consistent with the interests or welfare of the individual;
   • The fact that the conduct might arise in the exercise of a statutory power or in the performance of a statutory duty might assist in identifying the nature of the conduct and whether it falls within the meaning of a service but those matters are not determinative;
   • There is a distinction to be drawn between the services police provide to the community at large when undertaking duties such as preventing criminal conduct and an arresting officer's dealings with an alleged offender;
   • Police functions which are associated with the prevention and detection of crime when they intervene in situations where there is a disturbance of the peace or where an offence has been, or may be, committed are services provided to the public at large and individuals who may suffer injury or harm are likely to be services under the EO Act. In those circumstances, the service might include other functions such as protecting persons from injury or death and restoring and maintaining peace and good order;
   • Police provide a service when they respond to a specific request for assistance, such as when an emergency call is made. When police attend following a request for assistance, a service may be provided to a person who is being asked to leave or move on or take some other action which is intended to defuse the circumstances which led to the police attendance rather than because it is suspected that an offence has been committed;
   • Depending on the particular circumstances, after an alleged offender has been arrested and passed into police custody, police may have a public duty to provide services by way of protecting the person from injury or death and protecting property from damage;
   • Services are not provided when police investigate an alleged offence, question an alleged offender, arrest an alleged offender, deal with a bail application, decide whether or not to lay charges, decide whether or not to prosecute charges and decide how a matter will proceed in court;
   • Services are not provided when police serve summonses and execute search warrants and take other steps in respect of the laying of charges and their prosecution;
   • During the course of dealing with a situation or event, police may at some points in time provide a service to an individual but the conduct may cease to be a service. That might occur if police: take action to investigate a possible offence; deal with an alleged offender; deal with other unlawful conduct; act to enforce the law; or otherwise intervene to maintain peace and order; and
   • Whether in particular circumstances a service is being offered will require consideration of the conduct of police within the particular factual context.

1. Mr Djime claims that he was discriminated against by being left by police 'in the middle of nowhere' on 15 May 2013 after an incident at Footscray railway station.
2. The incident which sets the scene for this claim was described in detail in my earlier decision. In summary, after Mr Djime failed to touch on with his myki on arrival at the Footscray train station he was approached by two police officers, one of whom was the second respondent, Senior Constable Wilson. Mr Djime was stopped from boarding a train and was issued with infringement notices. Other police officers attended and walked Mr Djime out of the station.
3. Mr Djime said that he told the officers that he wanted to take the bus to the city. He said he was then put in a police van.[6] Mr Djime said that at all times he remained peaceful. He was put into the van and said that he was then driven to an industrial area where he was left. He said that was 'in the middle of nowhere' between Footscray and North Melbourne stations. He said he had to walk three miles to get to the city.[7]
4. In the course of the further hearing, Mr Djime alleged that Senior Constable Wilson had put him in the van and then told the officers driving the van to drop him off. He referred to a bald man being present. He said he did not know where he was left but that there were factories and housing. He said he was dropped close to a petrol station but could not say where the petrol station was by reference to a map produced by the respondents. All he could say was that he had to walk for five or six minutes to get to the North Melbourne station.[8]
5. Mr Djime alleged that before driving off the officers in the van had changed places - that is the female officer had been the passenger but she moved to the driver's seat and the male officer took her position.
6. As I understand it, Mr Djime said this all occurred because of his race or his physical appearance.

1. Three witnesses were called by the respondents, Sergeant Rick Nield, Senior Constable Natalie Remedios and Senior Constable Reece Duffield.
2. Sergeant Nield seemed to be the male officer referred to by Mr Djime. His evidence was that, on the relevant day, he was stationed at Footscray police station and was the supervisor for the Transit Safety Division which provides police services for Victoria's public transport system. Sergeant Nield heard a radio call regarding a person at Footscray station and walked to the railway station in response. On arrival he saw Mr Djime and had a short conversation with him. His witness statement said Mr Djime was aggressive and non-compliant. While he could not recall the content of the conversation, his evidence was that he was trying to de-escalate the situation.
3. Other police members were in attendance and a divisional van arrived and pulled up next to the station. As the most senior officer present, Sergeant Nield issued an instruction to the officers driving the divisional van to transport Mr Djime to the North Melbourne station. He stated that he issued the instruction because he considered that Mr Djime was breaching the peace. He stated that driving him away was a way of diffusing the situation without having to take more serious action. Sergeant Nield denied asking Mr Djime where he wished to go and the suggestion that Senior Constable Wilson gave the instruction as to where Mr Djime was to be taken. He stated that he selected the North Melbourne station because it was close by and as a key train hub, Mr Djime could easily travel from there to the city or elsewhere. Sergeant Nield denied the claim that the reason he gave the instruction for Mr Djime to be taken to the North Melbourne station was because of Mr Djime's race or appearance or any other reason other than the wish to restore the peace.
4. In cross-examination, Mr Djime asked Sergeant Nield how he could say he could not recall a number of things but could remember others. Sergeant Nield's response was that what he had said was his memory of the incident. Mr Djime asked Sergeant Nield to explain how it was logical to ask for Mr Djime to be driven to a railway station when he had been removed from Footscray station for not having a ticket. Sergeant Nield's response was that he was not aware of whether Mr Djime had a ticket or valid myki but had a memory that there had been a ticketing offence. Mr Djime suggested that Kensington station was closer to Footscray than North Melbourne and asked why he was not taken there. Sergeant Nield said that he chose the latter because it has more transport options. Sergeant Nield did not recall the drivers of the divisional van getting out to place Mr Djime in the van.[9]
5. Senior Constable Remedios and Senior Constable Duffield were driving the divisional van.
6. Senior Constable Remedios made a witness statement which said that, on 15 May 2013, she was on patrol duty with Senior Constable Duffield in a divisional van. She was driving and Senior Constable Duffield was the passenger and 'scribe', meaning he took notes of the incidents they were called to attend. The relevant running sheet shows that they were called to attend the Footscray railway station. Senior Constable Remedios had no independent recollection of what task they were asked to undertake or what Mr Djime was said to have done, however she recalled they were asked to drive to the station urgently.
7. Her statement said that, on arrival, they were provided with Mr Djime's name and contact details and some details from the other police officers about him having breached the peace and not having a ticket. One of the police members then instructed them to drive Mr Djime to the North Melbourne railway station. She believes that was Sergeant Nield. She could not recall exactly what was said but they were instructed to drive Mr Djime to that station.
8. She said Mr Djime was escorted to and placed in the van. She could not recall who placed him in the van. She believed that, in accordance with usual practice, Mr Djime would have been told where he was being taken. She stated that Senior Constable Duffield sat in the passenger seat and she commenced driving toward the North Melbourne station.
9. Neither she nor Senior Constable Duffield were familiar with that station and so she believed they would have used the GPS to assist them. She could not recall the route they took. Senior Constable Remedios stated it was a short drive to the North Melbourne railway station of perhaps five minutes. On arrival at the front of the station she recalled stopping the van and letting Mr Djime out directly in front. She stated she had not been to that station before by car and, as it is an unusual modern looking station, she recalled it very well. She stated that Mr Djime got out of the van and walked away, she believed in the direction of the station. Senior Constable Remedios stated from her memory he did not dispute where he had been dropped and did not say anything further to them.
10. Senior Constable Remedios denied that he been dropped 'in the middle of nowhere'. She stated she drove Mr Djime to the North Melbourne station because she been instructed to do so by a senior officer. She stated she did not take him to the station because of his ethnicity, appearance or for any reason other than because of the instruction she was given.
11. Mr Djime asked Senior Constable Remedios about her knowledge of North Melbourne station. She said she had not been there before but could recall driving down the street, the station being on the right and doing a U-turn to pull up in front. When asked how long it took to travel from one station to the other, Senior Constable Remedios suggested 10 to 15 minutes. Mr Djime challenged that evidence, noting that her statement referred to a trip of about five minutes. He suggested that she had not written her own statement and that she was trying to change the evidence. He asked about the logic of being removed from one station because he did not have a ticket and being taken to another. Senior Constable Remedios responded that she was just following the instructions of her sergeant.
12. She was asked how she knew it was the North Melbourne station if she had not been there before. Senior Constable Remedios said there was a sign on the front. In re-examination Senior Constable Remedios confirmed she recalled doing a U-turn to arrive out the front of the station having used a GPS to locate it. She further stated that she had been back to the station since and that was definitely the place she had dropped Mr Djime. She explained that she has something of a photographic memory and the only other time she had been to that station was when she dropped Mr Djime off. The contemporaneous running sheet also showed that was the task undertaken.
13. After that evidence, Mr Djime challenged Senior Constable Remedios' evidence that she had been the driver for the whole day. He referred particularly to her witness statement which referred to herself getting into the driver's seat and Senior Constable Duffield getting into the passenger seat after Mr Djime had been placed in the van. Mr Djime suggested that they had swapped seats and that the evidence was contradictory. Senior Constable Remedios maintained her evidence about being the driver of the divisional van for the whole day.[10]
14. Senior Constable Duffield made a witness statement and attended to give evidence. I gave leave for that evidence to be given. Despite a warning from me, Mr Djime, having objected to my grant of leave, left the hearing room while evidence was given.[11]
15. Senior Constable Duffield had no independent recall of the shift or tasks completed. In his witness statement he described the nature of a running sheet and the content of the sheet for 15 May 2013. He stated he believed the sheet to be an accurate record of what he and Senior Constable Remedios had done that day. He stated that, as the running sheet was in his handwriting he had been in the passenger seat with Senior Constable Remedios undertaking the driving responsibilities for the whole shift. He confirmed the running sheet showed he and Senior Constable Remedios had transported Mr Djime from Footscray station to North Melbourne station on the instruction of Sergeant Nield. He stated that, had another officer given an instruction, such as Senior Constable Wilson, he would have followed the more senior officer's directions.[12]

1. Victoria Police does not dispute that, when it transported Mr Djime, it was providing a service within the meaning of that term in the EO Act.
2. Before turning to the available evidence I will deal with Mr Djime's concern that the witnesses had limited recall of some of what had happened and yet gave definite evidence about other matters. These events occurred more than two years ago and, as I understood it, the incident was but one of many the officers attended to that day. In those circumstances, the absence of a detailed personal memory is neither surprising nor of concern to me where the witnesses gave strong and unshaken evidence about the key aspects of the events.
3. Mr Djime claimed that, on 15 May 2013, he was transported in a police van away from Footscray station and then left 'in the middle of nowhere', being a place near a petrol station with factories and housing around it and about a five or six minute walk from the North Melbourne station.
4. In seeking to prove that claim he has asserted that the instruction to drop him in that location was given by Senior Constable Wilson as some sort of continuation of their interaction at the Footscray station.
5. I prefer the evidence of Sergeant Nield and Senior Constable Remedios on this matter as I consider it more probable than not that the most senior officer present would have decided what action to take.
6. It strikes me as unusual that a person not subject to arrest be placed in a police divisional van and driven away to another location, particularly where there is no suggestion that Sergeant Nield offered to have Mr Djime driven somewhere or that Mr Djime asked for that to occur. However, I accept Sergeant Nield's evidence that he was seeking to diffuse the situation by removing Mr Djime from the immediate location. I also accept that he considered that North Melbourne station was a useful location as it is a larger station with a number of transport options.
7. Mr Djime's challenge to Senior Constable Remedios' statement that she was the driver of the van for the whole shift seems to have arisen from him giving great weight to her statement at paragraph 11 of her witness statement that she 'commenced driving towards North Melbourne Railway Station' after Mr Djime was put in the back of the van. Having regard to the content of the running sheet, Senior Constable Duffield's evidence that he would have been the 'scribe' for the whole day and Senior Constable Remedios' other evidence, I accept her evidence that she was the driver at all relevant times. That is supported by the evidence contained in the running sheet.
8. I found Senior Constable Remedios' evidence about her knowledge of the North Melbourne station, her memory of how she pulled up in front of the station and her return visit to be compelling.
9. I note that Mr Djime was unable to locate the place he said he was left on a map or provide useful identifying details.
10. Senior Constable Remedios' evidence is supported by the running sheet completed by Senior Constable Duffield and signed by her on 15 May 2013. The sheet said, relevantly, 'Driven to Nth Melb train station as Directed (sic) TST752 [apparently a reference to Sergeant Nield]. Re Breach of peace'. I accept that is a contemporaneous record of what occurred.
11. Having regard to the fact that the burden of proof falls on Mr Djime, I am not satisfied that he has shown that it is more probable than not that he was driven from Footscray station and left 'in the middle of nowhere'.
12. Even if he had, there is no direct evidence that any such action was because of an attribute protected by the EO Act. On the evidence before me, it seems to me more probable than not that Sergeant Nield considered that Mr Djime was acting aggressively and needed to be moved on somehow. That would be consistent with a call being made for officers and the divisional van to attend the Footscray station.
13. The claim has not been proven.
14. The respondents made an application for Senior Constable Wilson to be removed as a respondent following my earlier decision in respect of the strike out application. After Mr Djime alleged that she had given the instructions to have him dropped in the middle of nowhere I declined to make the order sought to allow an opportunity for Mr Djime to prove his claim. In those circumstances it is no longer open to me to remove her as a respondent, however, I confirm that there was no evidence that could support a finding that Senior Constable Wilson gave the alleged direction and so all claims as against her have been dismissed.

1. Mr Djime has made three claims arising from a dispute over a lease of premises in Sunshine.
2. In order to understand the evidence about these claims, it is necessary to describe the location of the property in issue a little. The property is an apartment located on top of a set of shops. The entry to the apartment is off a mall which serves as an entry to a number of shops including 'Pap's Meats', a butcher's shop. From the photos tendered in the hearing, it appears that the entry to the apartment is approximately five to seven metres from the footpath. The butcher's shop is located at the end of the entry mall, approximately five to seven metres from the doorway to the apartment. Between the apartment entry and the butcher's shop there is a framed glass doorway which has double opening automatic doors which were open at the time. The entry to the butcher's shop has hanging plastic strips.[13]
3. The building including the butcher's shop, other shops and the apartment in issue is owned by Mr Jack Papalia, the operator of Pap's Meats. His daughter Ms Nicole Papalia made a police statement which said, relevantly, that the upstairs area is leased to Mr Anthony Besanko and that he was free to sub-let rooms.[14]
4. The background to claims (ii) to (iv) was discussed in my earlier reasons as follows.
5. Mr Djime said that, on 17 September 2013, as evidenced by documents produced to the tribunal, he signed a residential tenancy agreement in respect of premises in Sunshine with Mr A Besanko and paid an amount of $1,200 for which he was given a receipt.[15] Mr Djime said that he then moved his belongings in and then went out to do some shopping. He said that when he returned that evening, he found his key did not work and he could not open the door. Mr Djime spent the night at a friend's house.
6. On 18 September 2013, Mr Djime said he, accompanied by Mr Dienkha, went to the Sunshine premises and tried to enter again. As he could not use his key to get in, he called a locksmith to attend. In the meantime, Mr Gilberto Besanko (Mr A Besanko's younger brother) arrived and started making racist remarks to Mr Djime, including saying he should go back to Africa and that he was not wanted in Australia.[16]
7. The locksmith, Mr Mark Baker, arrived.
8. Mr Djime called the police to come and assist. Call records presented to the tribunal show that, at about the same time, Mr A and Mr G Besanko also called the police to attend. Sergeant Kearnes and Constable Madeleine Robertson attended.
9. There were discussions between the police officers and the other parties. I will come to the detail of those discussions shortly. Next, Mr Djime entered the apartment doorway, went upstairs and entered the apartment proper.
10. In my earlier reasons, I described what Mr Djime said happened. He said he walked past Mr G Besanko who put his hands on him. Mr Djime removed Mr Besanko's hands, entered the downstairs door of the premises, and then went upstairs. He conceded in evidence that, when he moved Mr Besanko's hands, Mr Besanko 'slipped a little'.[17] He said he went upstairs followed by Sergeant Kearnes but in evidence said that Constable Robertson followed him first and Sergeant Kearnes came after. He said that Sergeant Kearnes asked him to leave and, in response Mr Djime sat on the sofa. Mr Djime said that Sergeant Kearnes took out gas spray. He realised that Sergeant Kearnes was going to be violent and so he voluntarily got up from the sofa, put his hands behind him and said words to the effect that, if Sergeant Kearnes wanted to arrest him, he could. Mr Djime said that he was handcuffed and then beaten by Sergeant Kearnes.[18]
11. Sergeant Kearnes version of events is very different: he absolutely denied assaulting Mr Djime. I will discuss his evidence in more detail below. As discussed in the earlier reasons, the events in the apartment led to Mr Djime being charged with assaulting Sergeant Kearnes, assaulting Mr G Besanko and resisting police on 18 September 2013 at the Sunshine premises. An extract of court orders showed that the charges of assaulting Mr G Besanko and resisting police were found proven by the Sunshine Magistrates' Court on 5 March 2015 but the charge of assaulting Sergeant Kearnes was dismissed.
12. The claim before me does not concern the events which led to and were the subject of those charges.
13. I will now turn to the three claims arising from these events.

Alleged racist comments - Sergeant Kearnes - claim (ii)

1. Mr Djime said that, when Sergeant Kearnes and Constable Robertson arrived, he showed them the lease documents and the receipt for payment. He explained he was entitled to enter the premises. He said that the officers went to speak to Mr G Besanko. Mr Djime said that he heard Sergeant Kearnes say to Mr G Besanko 'If you don't want Africans in your house then don't say there is a lease' and 'Africans are not good'.[19] That is the basis for discrimination claim (ii).
2. While at the earlier hearing Mr Djime produced evidence from Mr Dienkha and Mr Samuel Elliott about aspects of this incident, neither claimed to have heard the particular comment. Mr Dienkha gave evidence in chief that he heard the police officers say racist stuff. He also said he thought the police were racist because he had a feeling.[20]

1. Sergeant Kearnes denied making the above comments.
2. His evidence as set out in his witness statement[21] was that:
   • He and Constable Robertson received a call on the police radio that there were two requests for assistance at a property in Sunshine;
   • On arrival in the relevant street, they came across a group of people involved in an altercation on the other side of the road. Once that was addressed, they moved to the Sunshine address;
   • He and Constable Robertson saw the people they now know to be Mr Djime, Mr Elliott and Mr Baker. Mr Djime approached them and told them forcefully to let him into the premises upstairs. As set out above, Mr Djime referred to the lease agreement. He described Mr Djime as being very animated and talking loudly and quickly. There was a lengthy discussion about Mr Djime's claim that he was a tenant of the property and entitled to enter;
   • He went to speak with Mr G Besanko. Mr Besanko was standing in the doorway of stairs that lead to the upstairs property in issue. Mr Besanko told the officers that Mr Djime had no right to enter. After a conversation, he telephoned Mr A Besanko to discuss the matter;
   • During the course of the discussions with the Besanko brothers, he remained near the door that led upstairs and Mr Djime was standing on the footpath approximately five to seven metres away. He was speaking using normal volume;
   • After completing the telephone call with Mr A Besanko, he returned to speak further with Mr Djime. During the course of that conversation, Mr Djime said words to the effect 'You are a white and you are doing nothing because I'm black' and perhaps something like 'white people can't solve anything, you're only picking on me because I'm black'. Mr Djime also said that that Africans would take over Australia in six years because whites can't do anything; and
   • He directed Mr Djime to walk or step away and said words to the effect 'Go away you're being offensive and you're breaching the peace'. He walked away from Mr Djime to remove himself from what he described as the 'abuse' and he hoped that would also calm Mr Djime down.
3. Sergeant Kearnes attended the hearing to give evidence and adopted the contents of his witness statement as true and correct.[22]
4. Sergeant Kearnes' evidence was that the only person who mentioned race was Mr Djime when Mr Djime referred to him as a 'white'. Sergeant Kearnes denied hearing Mr Besanko making racist comments to Mr Djime.
5. Constable Robertson made a witness statement and attended to give evidence.[23]
6. Constable Robertson said in her statement that she was familiar with the property in Sunshine, the Papalia family and the Besanko brothers.
7. In her witness statement, Constable Robertson stated that, after arriving and initially speaking with Mr Djime, she went and spoke with Mr G Besanko. She did not hear him making any racist comments. She then stood with Sergeant Kearnes part way between Mr Djime and Mr Besanko. Sergeant Kearnes spoke with Mr G Besanko and then Mr A Besanko on the telephone. She was near Sergeant Kearnes when he was speaking to Mr G Besanko. She denied hearing Sergeant Kearnes make the comments set out above and confirmed that matter in cross-examination.
8. Mr Baker made a witness statement and attended to give evidence.[24]
9. Mr Baker's statement said that, when he arrived to attend to Mr Djime's request to change the locks on the apartment, he asked for documents to show that Mr Djime was entitled to have the locks changed. He was shown a health care card, an eftpos card and a lease. He became concerned about whether Mr Djime had an entitlement to access the premises, in part because of Mr Djime's persistent behaviour. That included Mr Djime offering to pay more than the agreed rate if he opened the door. He toyed with the lock in order to buy some time to decide what to do next. While he was toying with the lock, Mr G Besanko appeared on the inside of the mesh security door. Mr Baker explained why he was there. Mr Djime and Mr Besanko began arguing. There was reference to Mr Djime spitting and the men exchanging race based insults.
10. While Mr Baker was present when the police arrived and spoke with both Mr Djime and Mr G Besanko, he was not close enough to hear the whole of the discussions and in particular the conversation between Sergeant Kearnes and Mr Besanko. Mr Baker explained that, when the police were involved, he preferred to stay out of the way and not get involved.

1. Victoria Police agrees that it was providing a service to Mr Djime when they attended in response to his 000 call.
2. On the evidence before me, the exchange between Mr Djime and Mr G Besanko, including any racist statements, appeared to have all occurred before the police officers arrived. On that basis I accept Sergeant Kearnes' and Constable Robertson's evidence that they did not hear any racist comments Mr G Besanko was said to have made.
3. As to the alleged racist remarks said to have been made by Sergeant Kearnes, I prefer the evidence of Sergeant Kearnes as to his conversation with Mr G Besanko over that of Mr Djime. I accept Sergeant Kearnes' evidence that, in the early stages of the interaction with Mr Djime, he was seeking to diffuse the situation. Mr Djime does not dispute the comments he directed at Sergeant Kearnes regarding race. Sergeant Kearnes, gave his evidence in a calm and measured way. His record of the interaction as contained in his written statement to police made on 19 September 2013 was consistent with the evidence he gave before me. At relevant times he had described Mr Djime as being agitated and angry. Constable Robertson and Mr Baker also commented on Mr Djime being agitated on the day. Mr Baker described Sergeant Kearnes as being calm.
4. Constable Robertson's evidence was that she was close enough to hear Sergeant Kearnes speaking to Mr G Besanko and denied hearing the words Mr Djime alleges.
5. Mr Dienkha's evidence was not clear - he said he heard racist comments but also said he thought the officers were racist because of a feeling. Where Mr Dienkha was not available for cross-examination, his evidence cannot be given the same weight as that given by the other witnesses.
6. Having regard to the fact that the burden of proof falls on Mr Djime, I am not satisfied that he has shown that it is more probable than not that Sergeant Kearnes made the alleged comments about him to Mr G Besanko.
7. Claim (ii) has not been proven.

The request to leave the premises - claim (iii)

1. Mr Djime claims that Sergeant Kearnes engaged in discrimination by asking that he, rather than Mr G Besanko, leave the Sunshine premises.
2. In my earlier reasons, I said the following at paragraphs 128 to 129:

I accept that on the evidence heard so far, it would be open to characterise the police engagement with all parties as a service under the EO Act up to and including around the time Mr Djime was followed into the premises by the officers. There is no question, though, that on Mr Djime's evidence, after he sat on the sofa he was told to leave, he was threatened with spray and he then stood with his hands behind his back willing to be handcuffed. Those actions are consistent with Mr Djime being aware that he was being asked to leave the premises. Certainly once the spray was produced, he was aware that the police were not then assisting him or trying to establish what his rights were. It is apparent that the police wished him to leave the premises and, if necessary, action would be taken to ensure that occurred.

While I accept that the dealings between the police and Mr Djime up until he was asked to leave the premises might amount to a service and ought to be the subject of a full hearing, the events that follow that point in time cannot be characterised as falling within the meaning of a service under the EO Act. While up to that point in time it might be said that the police were trying to restore the peace and status quo by having Mr Djime leave the premises so the matter could be discussed outside, once the spray was produced and Mr Djime perceived he was to be restrained and possibly arrested, he could not be said to have been receiving a service.

1. In his particulars of claim, Mr Djime said that Sergeant Kearnes was with him in the stairwell and asked him to leave at that time, before they reached the upstairs apartment.[25] However, in cross-examination Mr Djime said that he went upstairs before the police officers. He stated that he sat on the couch because the police were coming and he was trying to avoid a confrontation. His evidence was that the chain of events was that he sat on the couch, Sergeant Kearnes entered the apartment, he then took out the spray and said, at the same time, 'you have to leave now'.[26]

1. The course of events leading to Mr Djime and then Sergeant Kearnes and Constable Robertson going up the stairs was the subject of much evidence and cross-examination. Constable Robertson gave evidence that she heard someone call out that Mr Djime was going upstairs and she then saw Mr Djime enter the stairwell to the apartment, pushing past Mr G Besanko. She was strongly challenged on that evidence by Mr Djime because, at the relevant time, she had been standing inside the entrance to the butcher shop speaking to its owners. Taking into account the location of the shop and its orientation, Mr Djime questioned whether she could have seen those events from her vantage point. He said that he would already have been upstairs by the time she had moved to the entrance of the stairwell. Constable Robertson reiterated her evidence as to what she had seen.[27] The evidence of Mr Baker and a police statement made by Ms Papalia confirmed that Mr Baker called out that Mr Djime was going up the stairs and that the police officers then followed.[28]
2. Sergeant Kearnes' evidence was that he got the capsicum spray out when he was going up the stairs.[29] Constable Robertson confirmed that evidence.[30]

1. Given that the interaction with Mr G Besanko led to charges and a finding in the Magistrates' Court, it would not be appropriate for me to make findings about the precise timing of events regarding Mr Djime's entry into the apartment. As discussed below, it is not necessary for me to do so anyway, given Mr Djime's own evidence about when Sergeant Kearnes asked him to leave the premises and when the capsicum spray was produced.
2. As foreshadowed in my earlier reasons, once Sergeant Kearnes took out his capsicum spray he was not providing a service under the EO Act and so any action beyond that point cannot be considered further.
3. On the evidence before me, the latest point in time when the capsicum spray was produced was when Sergeant Kearnes entered the apartment and first spoke to Mr Djime. As, on Mr Djime's evidence, that was when Sergeant Kearnes asked him to leave, the claim that Sergeant Kearnes engaged in discrimination by asking Mr Djime to leave rather than Mr G Besanko cannot be considered further.
4. As will become apparent from the discussion below, even if it had been open to me to consider that claim, it is more probable than not that Sergeant Kearnes asked Mr Djime to leave because of his behaviour rather than because of his race or physical appearance.
5. The claim has not been proven.

Assisting or authorising discrimination - claim (iv)

1. As noted earlier, section 105 of the EO Act allows a claim of a breach of the prohibitions on discrimination and sexual harassment to be brought against the person said to have committed the breach or against a person said to have authorised or assisted in the breach. As I understand it, Mr Djime said that Sergeant Kearnes assisted Mr G Besanko by evicting him and that Mr G Besanko wished to have Mr Djime removed from the Sunshine premises because of his race.
2. The respondents have correctly submitted that, before a finding can be made that a person has authorised or assisted in a breach of the EO Act, it must be proven that there was a breach and that the authorisation or assistance preceded the act which constituted the discrimination.[31] Accordingly, here, Mr Djime must prove that Mr G Besanko discriminated against him by evicting him and that, Sergeant Kearnes assisted Mr Besanko in a way which led to the discriminatory conduct.
3. The respondents noted that, as Mr G Besanko is not a party to this proceeding, it would be unfair to make a finding of discrimination against him.

1. I understand that Mr Djime's position is that Mr G Besanko was acting on behalf of his brother, the other party to the lease and the person who was potentially providing accommodation services to Mr Djime. Section 53 of the EO Act prohibits discrimination in providing accommodation. In particular, section 53(c) prohibits discriminating against another person by evicting the person from accommodation and section 53(f) prohibits discriminating against another person by subjecting the person to detriment in connection with the accommodation.
2. Accordingly, the claim against Sergeant Kearnes seems to be that, by removing Mr Djime from the Sunshine premises, he assisted Mr A Besanko to evict Mr Djime or to otherwise subject him to detriment.

1. Victoria Police did not concede that Mr G Besanko (or Mr A Besanko) discriminated against Mr Djime. It accepted there might be evidence that Mr G Besanko made racist remarks to Mr Djime on 18 September 2013. However, it noted that, on Mr Djime's evidence, the locks on the premises appeared to have been changed the day before and that was why he was unable to get access that evening and why he arranged for the locksmith to attend on 18 September 2013.
2. As set out above, when Sergeant Kearnes and Constable Robertson attended the premises, they spoke with Mr Djime and then Mr G Besanko. In his witness statement, Sergeant Kearnes said on the one hand that he had been shown a tenancy agreement but also that he could not recall seeing a lease contract. He stated he did not recall seeing a receipt for payment of rent. He referred to the document he saw having only one but not two signatures. He went on to say that, even if he had seen a lease agreement, he would have reacted in the same way - that is to say by treating the dispute as a civil matter. He believed he would have told Mr Djime to seek legal advice. He stated he did not have the power to enter the premises in a civil matter. I note here that Mr Djime agreed that Sergeant Kearnes told him the dispute was a civil matter.[32]
3. In cross-examination, Mr Djime asked Sergeant Kearnes questions about the lease agreement and how it could be that Sergeant Kearnes said there was no lease when he had been told there was one by Mr G Besanko. Sergeant Kearnes said that he could not recall such a conversation. He was shown a transcript of the 000 call made by Mr G Besanko in which he referred to a lease agreement and related matters. Sergeant Kearnes explained he had not seen the transcript before and could not comment on what Mr G Besanko or others had done before he arrived. He was also asked about evidence he gave in the Magistrates' Court about whether the lease document had one signature or two. He was asked questions about whether he was told by the daughter of the owner of the butcher's shop that one or both Besanko brothers rented the property.
4. As I understood it, the confusion about the lease documents arose in part because Sergeant Kearnes was also shown similar documents at the Magistrates' Court and he believed the document he was shown on that occasion differed from that which he was shown when he attended the Sunshine premises. I understood that the detail of the content of the documents was not of primary concern to him because, on arrival, he determined that the dispute was clearly of a civil nature and not a police matter.[33]
5. Sergeant Kearnes gave evidence that he asked Mr Djime about what belongings of his were in the premises. Sergeant Kearnes explained that he did so to try to ascertain whether he had any pecuniary interest in the premises. He said that Mr Djime told him he had bed sheets inside. There was a discussion about where the sheets were located and their colour. Mr Djime denied being asked about bed sheets or anything similar.[34] After that, Sergeant Kearnes asked Mr Djime to wait where he was standing and he moved to speak to Mr G Besanko. Then, Mr Djime entered the premises and the interaction which led to the charges discussed above occurred.
6. Constable Robertson gave evidence Mr Djime handed a number of documents to Sergeant Kearnes that included the lease and a copy of Mr A Besanko's health care card but she did not recall seeing a receipt. In cross-examination she was asked why, given she had seen the lease, she believed Mr G Besanko when he said that there was no lease. Constable Robertson said she was not familiar with the documents and did not know if they were authentic and she was aware that the Besanko brothers lived at the address.

1. Three calls were made to 000 on 18 September 2013 - one by Mr Djime and one by each of the Besanko brothers.
2. The transcript of Mr A Besanko's 000 call showed he called for police assistance at the Sunshine premises alleging his neighbour had told him that someone was trying to break in.[35]
3. The transcript of a 000 call made by Mr G Besanko included race based references to Mr Djime and others. The transcript shows that Mr G Besanko referred to a lease arrangement and explained that the person was supposed to move in but 'didn't end up paying the bond money. They were, meant to be moving in on the 17th. Now, the - it's - it's a bit of a lease agreement thing and something happened. The - the African guy has been abusive towards everyone and so decided not - not to let him move in any more. And - and it's just like a civil dispute thing. And - and then - and he's getting abusive towards me. He just spat through the door.' He then said 'And he is - he just thinks that he can just - he thinks it's like - it's like South Africa where they can just come in and loiter and do whatever they want. And I've just been attacked and they're - they're haggling the butchers here. They're - they're stopping business within the complex and they're being disruptive.'[36]
4. In his statement to police, Mr A Besanko said that he had spoken to Mr Djime about Mr Djime renting a room. He stated that he decided he did not want Mr Djime to move in but then that he discussed renting a room to him for $300 per week. He stated that he signed a piece of paper prepared by Mr Djime and that he did not know what he was signing. He told Mr Djime that, when he came up with the money the next week, Mr Djime could move in. His statement said that Mr Djime did not turn up the next week and then turned up 'out of the blue' and there was an incident with his brother. Mr A Besanko denied ever receiving any money from Mr Djime and never had a copy of any paperwork.[37]

1. The first question raised by this claim is whether Mr Djime was evicted from the premises such that there was a breach of section 53(c) of the EO Act. I will leave to one side the legal requirements which must be present to establish a tenancy, possession of rented premises and the process for an eviction under the Residential Tenancies Act 1997 (Vic).
2. While not necessarily established by the evidence, I will assume for the moment that, on 17 September 2013, Mr Djime had some entitlement to the premises and that he had some possessions inside. I will also assume he had been given a key to the premises that day.
3. It is apparent from Mr Djime's own evidence that the locks had been changed and that he was unable to obtain access to the premises on 18 September 2013. Assuming that Mr A Besanko had changed the locks or arranged for that to be done, at the point in time when Mr Djime could not obtain access he had been effectively evicted. As that occurred before Victoria Police had been called or had any involvement, it is not possible to show that any officer, including Sergeant Kearnes, had authorised or assisted the eviction.
4. To take the broadest possible approach, I will assume that, when Mr Djime attended on 18 September 2013 and tried to get access to the premises, Mr G Besanko subjected him to detriment in connection with the accommodation.
5. The question is whether it was Mr Djime's race or physical appearance which was a substantial reason for that conduct.
6. Without having heard evidence from Messrs Besanko it is not possible and would not be fair for me to make a finding on that matter. Having regard to the material before me, it seems possible that the Besanko brothers decided they did not like Mr Djime and did not want him to rent the premises because of his behaviour. Whether those views were based on his race or physical appearance is not a matter I can make a finding about without hearing from them. In the absence of evidence from the Besanko brothers, I am unable to conclude that either of them engaged in discriminatory conduct in respect of accommodation contrary to the EO Act.
7. Even if I could reach the view that Mr Djime's race and/or appearance was behind their attitudes and actions that is not sufficient to conclude that Sergeant Kearnes authorised or assisted them to subject Mr Djime to detriment. It is apparent from the evidence before me from the two hearings that Mr Djime was removed from the premises because of an alleged assault on Mr G Besanko and Sergeant Kearnes and because he was alleged to be resisting police. As noted earlier, the charges in respect of assault on Mr G Besanko and of resisting police were found proven.
8. There is an absence of direct evidence which could support a finding that Sergeant Kearnes actions were focussed on removing Mr Djime or interfering with his possession of the Sunshine premises in order to assist Mr A or Mr G Besanko. In those circumstances, the preferred inference is that Sergeant Kearnes was acting to manage a breach of the peace. Certainly, even on Mr Djime's evidence, at the time he was removing Mr Djime from the premises, Sergeant Kearnes was exercising his powers as a police officer.
9. Even when I make a number of assumptions in Mr Djime's favour, the more likely explanation for what occurred is that Sergeant Kearnes decided to remove Mr Djime from the premises because Mr Djime had acted in a manner which amounted to a breach of the peace in circumstances where there was a civil dispute and a serious question about Mr Djime's entitlement to enter the premises.
10. There is no proper basis on which I could conclude that Sergeant Kearnes authorised or assisted discrimination such that a breach of section 105 of the EO Act has been proven.

Things done with statutory authority under section 75 of the EO Act

1. The respondents made submissions that, in the context of the events which gave rise to claims (iii) and (iv), even if services are provided to Mr Djime as alleged and there was an act of discrimination, they may rely on section 75 of the EO Act.
2. Section 75(1) says that a person may discriminate if the discrimination is necessary to comply with, or is authorised by, a provision of another Act or enactment. Subsection (2) says that it is not necessary that the provision of the other Act or enactment to refer to discrimination, as long as it authorises or necessitates the relevant conduct that would otherwise constitute discrimination.
3. As discussed in my earlier reasons,[38] the respondents referred to the role of Victoria Police officers by reference to the Victoria Police Act 2013 (Vic) (Police Act) and the Police Regulation Act 1958 (Vic). They contended that, at the time Sergeant Kearnes asked Mr Djime to leave the premises and then removed him, he was acting in accordance with his role as a police officer, including by acting to preserve the peace.
4. I accept that submission and am satisfied that, even if Mr Djime could have demonstrated that Sergeant Kearnes had breached the EO Act in respect of those two claims, section 75 of the EO Act would apply such that any such discrimination would not be prohibited.

Alleged racist comments - Sergeant Drake - claim (v)

1. In my earlier reasons, I described Mr Djime's claim in respect of Sergeant Drake as follows.
2. After the events at Sunshine on 18 September 2013, Mr Djime went to the Flinders Street Police Station and made a complaint about the behaviour of Sergeant Kearnes to Sergeant Drake. In his particulars of claim, Mr Djime said that Sergeant Drake said that he was a 'nonsense' after Mr Djime had repeated three times the events at the premises.[39] When Mr Djime told Sergeant Drake that he had two Masters degrees, Sergeant Drake was nice after that. He gave evidence that Sergeant Drake arranged for him to be examined by a police doctor.[40]
3. When giving evidence about his interaction with Sergeant Drake, Mr Djime referred to systemic problems with Victoria Police and how they treat people from Africa.[41]
4. As explained in my earlier reasons, I understood that Mr Djime asked me to infer that, when Sergeant Drake said that he was speaking nonsense or was a nonsense or similar words, the comment arose because of Mr Djime's race or physical features.[42]

1. There was no dispute that Victoria Police was providing Mr Djime with a service when he attended to make a complaint about Sergeant Kearnes.
2. Sergeant Drake made a witness statement on 23 September 2015.[43] After describing Mr Djime's attendance at the police station and the complaint he made, paragraphs 11 and 12 of that statement said:

I tried to calm the Applicant down. I told him that he was making a very serious allegation. I told him that I needed to be clear with what he was saying. I said words to the effect of 'You are telling me all different things, there are legal documents to be in a rental place, then police have come and kicked you in the head. It's not making sense.' I said this because I couldn't make sense of what he was saying and how each element of what he was saying fit together. The Applicant was very emotional and was waving his arms around.

At this point, the Applicant became very agitated. He replied with words to the effect 'You're not making sense, I will make more sense than you ever will. I have two university degrees.' I told him that his university degrees were irrelevant as I was just trying to make sense of what he said.

1. Sergeant Drake attended to give evidence. He adopted his witness statement and was cross-examined. In cross-examination, he stated that he did not call Mr Djime a nonsense and would not have done so as it was grammatically incorrect. He repeated that he said Mr Djime was not making sense and that was because he was speaking in a very agitated manner which made it difficult to understand him.[44]
2. Sergeant Drake's witness statement sets out all of the steps he took to deal with Mr Djime's complaint about Sergeant Kearnes. Those steps included notifying more senior officers and Professional Standards Command about the complaint, seeking information about the alleged incident from Sunshine police station, taking photographs of Mr Djime, taking his statement and arranging for Mr Djime to be examined by a Forensic Medical Officer.[45] As I understood it, Sergeant Drake spent around three hours assisting Mr Djime and attending to these matters.

1. I am satisfied that at all relevant times, Sergeant Drake took seriously and acted appropriately on Mr Djime's complaint. Sergeant Drake's witness statement shows that relevant procedures were followed by Sergeant Drake in response to what he had been told.
2. Sergeant Drake's evidence as to what he said was strong and unshaken. He gave compelling evidence that he would not have used the words alleged because they were grammatically incorrect. Taken together with the evidence about the careful manner in which he responded to Mr Djime's complaint, I consider it highly unlikely that he would have denigrated Mr Djime in the way suggested.
3. During the course of his cross-examination of Sergeant Drake, Mr Djime seemed to equate Sergeant Drake saying that he was 'not making sense' with him being called 'a nonsense'. They are materially different concepts and grammatical statements.
4. I find it is more probable than not that Mr Djime misunderstood what Sergeant Drake said and that, rather than being called 'a nonsense' he was told that he was not making sense. I accept Sergeant Drake's evidence that comment was made because he was having trouble understanding the complaint Mr Djime was seeking to make.
5. The claim has not been proven.

Alleged request to leave Sutton Street premises - claim (vi)

1. In my earlier reasons, I described the background to this claim as follows.
2. In 2012, Mr Djime was living in a house in Sutton Street, Reservoir. One of his house mates got drunk and called Mr Djime asking him to come home. When he arrived and opened the door, the housemate punched Mr Djime. Mr Djime called the police. He said that the police asked him to leave for the night. When Mr Djime objected saying he was a tenant at the house, they said he was getting agitated and would be arrested. He left the house and spent the night in the cold. Mr Djime said that Victoria Police always gives preferential treatment to white people when there are issues with Africans. He said one of the police officers said 'You people have come with nothings (sic) in the hands in the country, you do not own the house, so leave!!'[46]
3. At the further hearing, Mr Djime gave additional evidence about the event during the course of cross-examination. He said that he called for police at night, that a female and a male officer attended on the relevant day and that the male officer asked him to leave.[47]

1. Victoria Police filed two witness statements made by Mr Stuart McKenzie, Senior Legal Officer.[48] In those statements, Mr McKenzie set out the steps he and other staff had taken to attempt to identify a possible date for the incident Mr Djime described in order to then identify the officers who would have attended.
2. The first witness statement described Victoria Police's records (the LEAP database), the requirements for record keeping and the searches undertaken at that time. The searches focussed on the address in issue and Mr Djime's name and variations of his name in the period June 2012 to January 2013. Further searches were made using a wider range of variations on Mr Djime's name and for the longer period of January 2012 to January 2013. The result of the searches was that there were three possible incidents which might have been relevant. One of the incidents did not result in an attendance by police as the matter was discussed and apparently dealt with over the telephone. A second incident concerned the execution of a warrant of possession issued by this tribunal. The police records indicated that Mr Djime was not present.
3. A third incident which occurred on 15 June 2012. Mr Djime had called to complain that a housemate had broken his door. The running sheets indicated that there was a dispute between Mr Djime and a housemate and that the housemate was drug and/or alcohol affected. Three units attended but none of the officers was female. Police attended and recorded 'all calm now'.
4. After hearing Mr Djime's evidence about the incident, further searches were undertaken. Those searches led to Mr McKenzie's second witness statement.[49] On 7 September 2012, a female and male police officer attended the Sutton Street premises after Mr Djime had called for assistance. Those officers were identified by the registered numbers of the officers recorded on the relevant running sheets. Those officers attended twice on 7 September 2012 and the running sheets showed that they told the parties that the matter was a civil dispute.
5. Victoria Police arranged for those two officers to make witness statements and to attend to give evidence. On the morning of the hearing held on 5 November 2015, Mr Djime saw the two police officers outside the hearing room and informed me that they were not the officers involved in the incident which was the subject of his complaint. Accordingly, I directed that their witness statements would not be admitted into evidence and they were excused from attendance.

1. I noted before that Mr Djime has the burden of proving his claims of discrimination.
2. I accept Mr McKenzie's evidence about the detailed searches undertaken and their results. I am satisfied that Victoria Police has made every effort to assist the tribunal and to respond to the claim by searching for a record of the incident.
3. When Mr Djime said that those witnesses were not the officers involved in claim (vi) and I determined that their evidence would not be relevant, I warned Mr Djime that, as he carried the burden of proof, I would make my decision about when the described incident occurred and whether the claim was proven primarily on the evidence he had presented.[50]
4. Where Mr Djime said that the September 2012 incident identified was not the one he was complaining about and has produced no evidence which sufficiently identifies when the relevant incident occurred and who was involved, I cannot be satisfied that the claim has been properly particularised to allow Victoria Police to respond.
5. The evidence Mr Djime has presented is insufficient for me to draw an inference that the alleged actions were taken and the alleged words were said by Victoria Police officers.
6. In those circumstances, the claim has not been proven.

1. As none of the six remaining claims has been proven, the application will be dismissed.

[1] The orders were made under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) - Djime v Kearnes [2015] VCAT 941.

[2] Transcript, 5 October 2015, pages 8 to 11.

[3] See section 6 which sets out the list of attributes on the basis of which discrimination is prohibited.

[4] See section 8 of the EO Act for the definition of direct discrimination.

[5] See sections 7, 8 and 10 of the EO Act which define discrimination and direct discrimination and deal with motive.

[6] Transcript, 10 March 2015, pages 102 to 104.

[7] Particulars of claim, paragraphs 20 2 to 211.

[8] Transcript, 5 October 2015, pages 26, 31 to 35.

[9] Witness statement dated 19 September 2015 (Exhibit R3) and transcript, 5 October 2015, pages 73 to 83.

[10] Witness statement dated 18 September 2015 (Exhibit R4) and transcript, 5 October 2015, pages 83 to 94.

[11] Transcript, 5 November 2015, pages 15 to 16 and 32 to 34.

[12] Witness statement dated 29 October 2015 (Exhibit R10) and transcript, 5 November 2015, pages 40 to 41.

[13] Exhibit MK-1 to Sergeant Kearnes' witness statement are photographs of the relevant areas.

[16] Particulars of claim, paragraph 9.

[17] Transcript, 10 March 2015, page 38.

[18] Particulars of claim, paragraphs 20 to 27 and transcript, 10 March 2015, pages 38 to 40.

[19] Transcript, 10 March 2015, pages 32-33.

[20] Transcript, 10 March 2015, pages 145 to 146.

[21] Dated 21 September 2015 (Exhibit R5).

[22] Transcript, 5 October 2015, pages 95 to 127.

[23] Witness statement dated 22 September 2015 (Exhibit R6) and transcript, 5 October 2015, pages 128 to 148.

[24] Witness statement dated 21 September 2015 (Exhibit R7) and transcript, 6 October 2015, pages 153 to 173.

[26] Transcript, 5 October 2015, pages 51 to 53. See also Constable Robertson's witness statement dated 22 September 2015, paragraph 30.

[27] Transcript, 5 October 2015, page 138 to 139.

[28] Ms Papalia's police statement dated 3 October 2014; Mr Baker's witness statement dated 21 September 2015, paragraph 24 and transcript, 6 October 2015, pages 163 to 164.

[30] Witness statement, paragraph 31 and transcript, 5 October 2015, pages 16 to 17.

[31] Written submissions, paragraphs 20 to 26, which refer to relevant cases including Weber v Deakin University [2014] VCAT 1440, Besley v National Aikido Association Inc [2005] VCAT 245; and Christian Youth Camps Limited & Ors v Cobaw Community Health Services Limited & Ors [2014] VSCA 75.

[32] Transcript, 5 October 2015, page 47.

[33] Transcript, 5 October 2015, pages 98 to 101.

[34] Transcript, 5 October 2015, page 43.

[40] Transcript, 10 March 2015, page 52.

[41] Transcript, 10 March 2015, pages 50 to 52.

[42] Paragraphs 147 to 148, earlier reasons

[44] Transcript, 5 November 2015, pages 45 to 46.

[45] Witness statement, paragraphs 16 to 30.

[46] Particulars of claim, paragraph 239(f) and paragraph 203, earlier reasons.

[47] Transcript, 5 October 2015, page 67.

[48] Dated 23 September 2015 (Exhibit R9) and dated 30 October 2015 (Exhibit R8).

[49] I granted leave for that witness statement to be admitted into evidence. Mr Djime again elected to leave the hearing room while Mr McKenzie gave evidence.

[50] Transcript, 5 November 2015, pages 24 to 28.