Victorian Civil and Administrative Tribunal|2015-06-26

For the reasons set out above, I have decided that, under section 75(1) of the VCAT Act, the following claims are to be dismissed: items a, b, c, e, f, i, j, k, l, n, p, q, r, s, t, u, v, w, x, y and z.

The following claims will proceed to hearing: items d, g, h, m, o and aa.
I will make orders for the proceeding to be listed for further hearing before me after 24 July 2015. I have decided to allow three days for the further hearing but invite the parties to contact the tribunal if they consider that is insufficient time or if three days is considered to be excessive. At least 14 days before the next hearing date, the respondents are to notify Mr Djime of any witnesses required to attend the further hearing for cross-examination.
As discussed in these reasons, the law which applies to applications under section 75 of the VCAT Act, means that summary dismissal is treated with caution. The fact that I have determined that certain claims are to proceed to hearing is not a prediction of the likely outcome following a full hearing of all evidence and submissions of law.

No service under the EO Act - misconceived under section 75(1)(a) of the VCAT Act

A claim of discrimination[100] arising from the charges laid in respect of events at Footscray station on 15 May 2013

No service under the EO Act - misconceived under section 75(1)(a) of the VCAT Act

A claim of discrimination arising from Mr Djime's removal from Footscray station and him being placed in a police van allegedly as a means to cover up the sexual harassment and because he had rejected the police officers' advances on 15 May 2013

No service under the EO Act - misconceived under section 75(1)(a) of the VCAT Act

A claim of discrimination arising from Mr Djime allegedly being left by police in the middle of nowhere on 15 May 2013

A claim of discrimination arising from the issuing of the two infringement notices, the laying of the charges and their prosecution in the context of the Footscray station incident

No service under the EO Act - misconceived under section 75(1)(a) of the VCAT Act

A claim of victimisation arising from the laying of the charges and their prosecution in the context of the Footscray station incident

Lacking in substance and an abuse of process under sections 75(1)(a) and (b) of the VCAT Act

A claim of discrimination arising from the comments said to have been made to Mr G Besanko by Sergeant Kearnes as set out in paragraph 114 on 18 September 2013

A claim of discrimination arising from Sergeant Kearnes' request on 18 September 2013 that Mr Djime, rather than Mr G Besanko, leave the premises

A claim of discrimination arising from Sergeant Kearnes taking out gas spray while inside the premises on 18 September 2013

No service under the EO Act - misconceived under section 75(1)(a) of the VCAT Act

A claim of discrimination arising from Sergeant Kearnes allegedly assaulting Mr Djime inside the premises on 18 September 2013

No service under the EO Act - misconceived under section 75(1)(a) of the VCAT Act

A claim of discrimination arising from Sergeant Kearnes allegedly evicting Mr Djime from the premises on 18 September 2013

No service under the EO Act - misconceived under section 75(1)(a) of the VCAT Act

A claim of discrimination arising from the failure, on 18 September 2013, to ask Mr Dienkha about what had occurred and rather asking Mr Elliott, who is white

No standing to make claim - misconceived under section 75(1)(a) of the VCAT Act

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

A claim of victimisation in respect of the charges laid in the context of the lease dispute

Lacking in substance and an abuse of process under sections 75(1)(a) and (b) of the VCAT Act

A claim of discrimination in respect of comments allegedly made by Sergeant Drake to Mr Djime when he made the complaint on 18 September 2013

A claim of discrimination arising from an alleged failure to investigate properly the complaint about Sergeant Kearnes' conduct on 18 September 2013

Lacking in substance under section 75(1)(a) of the VCAT Act

A claim of victimisation by Constable Le attending Mr Djime's home and making enquiries about his whereabouts in the context of the lease dispute charges and prosecution

Lacking in substance and an abuse of process under sections 75(1)(a) and (b) of the VCAT Act

A claim of discrimination arising from the lease dispute charges and the management of the hearing of those charges including the involvement of Constable Le

No service under the EO Act - misconceived and an abuse of process under sections 75(1)(a) and (b) of the VCAT Act

A claim of discrimination arising from all of the matters raised by Mr Djime in this proceeding in respect of Victoria Police's dealings with him

Lacking in substance under section 75(1)(a) of the VCAT Act

A claim of discrimination arising from police officers searching Mr Djime's Collingwood store in 2008

No service under the EO Act - misconceived and lacking in substance under section 75(1)(a) of the VCAT Act

A claim of discrimination in respect of Mr Djime's treatment as compared to that of two white customers in his Collinwood store in or around March 2009

Lacking in substance under section 75(1)(a) of the VCAT Act

A claim of discrimination arising from interaction with police when he was dancing in Collins Street

Lacking in substance under section 75(1)(a) of the VCAT Act

A claim of breach of the Charter arising from interaction with police when he was dancing in Collins Street

Lacking in substance under section 75(1)(a) of the VCAT Act

A claim of racial vilification arising from interaction with police when he was dancing in Collins Street

Lacking in substance under section 75(1)(a) of the VCAT Act

A claim of discrimination arising from a request to leave the area around a nightclub on 8 September 2012

Lacking in substance under section 75(1)(a) of the VCAT Act

A claim of sexual harassment by 'Emily' at PJ O'Brien's nightclub

No service under the EO Act - lacking in substance under section 75(1)(a) of the VCAT Act

A claim of discrimination arising from the police's request for Mr Djime to leave the Sutton Street premises

[2] The cases include the following: State Electricity Commission of Victoria v Rabel & Ors [1998] 1 VR 102; Norman v Australian Red Cross Society (1998) 14 VAR 243; Towie v State of Victoria & Ors [2002] VCAT 1395; Forrester v AIMS Corporation [2004] VSC 506; Naylor v Oakley Thompson & Co Pty Ltd & Ors [2008] VCAT 2074.

[3] Ballarto Pastoral Pty Ltd v Department of Primary Industries [2006] VCAT 478.

[4] Assal v Department of Health, Housing and Community Services (1992) EOC 92-409, applied in Liu v University of Melbourne [2002] VCAT 896.

[5] Molyneux v VCAT & Anor [2007] VSC 89 at [53].

[6] Chief Justice French in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 at [333] quoting with approval Walton v Gardiner [1993] HCA 77, per Mason CJ, Deane and Dawson JJ at [23].

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

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

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

[11] Section 75 application dated 25 March 2015, paragraph 219.

[12] [2014] VSC 585 at paragraph [39].

[15] IW per Brennan CJ and McHugh J at paragraph 11, Dawson and Gaudron JJ at paragraph 23, Toohey J at paragraph 27 and Gummow J at paragraph 41; AB v Registrar of Births, Deaths and Marriages [2006] FCA 1071; Farah v Commissioner of Police of the Metropolis [1998] QB 65 at paragraph 78-79.

[19] Written submissions, paragraph 109.

[21] [2014] VCAT 1039, at paragraph 19-21.

[22] Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770. That decision was affirmed on appeal - [2013] FCAFC 64.

[23] Mariani v NSW Police Force, State of NSW [2013] NSWADT 35 at paragraph 87; Rasmussen v State of NSW, NSW Police Force [2013] NSWADT 277, at paragraph 39.

[24] [1999] VCAT 616, at page 12.

[29] This finding was upheld on appeal to the NSW Administrative Tribunal Appeal Panel - [2012] NSWADTRP 27 at paragraph 46.

[30] [2001] NTMC 54, at paragraph 48.

[34] Written submissions, paragraphs 23 to 26.

[35] Respondents' section 75 application, paragraph 136.

[36] Concession made by respondents' counsel at section 75 hearing held on 13 May 2015.

[37] Particulars of claim dated 18 September 2014, paragraphs 154-221.

[38] Particulars of claim, paragraph 196.

[40] Particulars of claim, paragraph 197.

[44] Particulars of claim, paragraphs 209-211.

[46] Transcript, page 97. I have assumed that the reference to 'he' in the transcript is a typographical error as I understood the male police officers who were involved had not attended at this stage.

[49] Particulars of claim, paragraph 178.

[50] Particulars of claim, paragraph 180-181.

[51] Particulars of claim, paragraphs 154-221.

[55] Particulars of claim, paragraphs 160-162.

[58] Particulars of claim, paragraph 154.

[59] Particulars of claim, paragraph 162.

[60] Particulars of claim, paragraphs 1-81, 90-2, 113 and 138.

[62] Particulars of claim, paragraph 9.

[63] Police statement dated 4 November 2011 - Exhibit A10.

[67] Particulars of claim, paragraphs 20-27 and transcript pages 38-40.

[69] Statutory declaration made 29 December 2013 - Exhibit A36 and transcript 139-141.

[70] Statutory declaration made 20 December 2013.

[73] Particulars of claim, paragraph 19-27.

[74] Written submissions, paragraph 38-47.

[75] Particulars of claim, paragraphs 1-81, 90-2, 113 and 138.

[80] Particulars of claim, paragraph 36.

[81] Section 75 application, paragraph 153.

[83] Particulars of claim, paragraphs 93-153.

[86] Statutory declaration made on 23 December 2013 - Exhibit A19.

[87] Particulars of claim, paragraph 150.

[88] The materials included a copy of the statement of claim filed in proceedings between Ahmed Dini and others and individual police officers and the State of Victoria. Reference was also made to proceedings in the name of Haile-Michael which I understand were settled on a confidential basis with no findings or determinations having been made by the Federal Court.

[89] Rights of passage - two years on: The experiences of Australian-Sudanese young people, 2010.

[90] Particulars of claim, paragraph 238-239(a).

[91] Particulars of claim, paragraph 239(b).

[92] Particulars of claim, paragraph 239(c).

[97] Particulars of claim, paragraphs 239(d) and (e).

[98] Particulars of claim, paragraph 239(f).

[99] Particulars of claim, paragraph 239(f).

Opportunity Act 2010

Religious Tolerance Act 2001

Human Rights and Responsibilities Act 2006

Civil and Administrative Tribunal Act 1998

Opportunity Act 1984

Discrimination Act 1992

Djime v Kearnes (Human Rights) [2015] VCAT 941 (26 June 2015)

Djime v Kearnes

At a glance

Court

Decision date

Source

Judgment (113 paragraphs)

Parties

Legislation Cited (8)

Cases Cited (2)

Djime v Kearnes (Human Rights) [2015] VCAT 941 (26 June 2015)