FBJ v Saul

NCAT Administrative and Equal Opportunity|2021-10-06

Background

The Applicant in these proceedings is referred to as 'FBJ' due to previous orders made by the Tribunal pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (the CAT Act).
The Applicant was a patron of the Bar Broadway Hotel in Chippendale, Sydney. The respondents are employees of the Bar Broadway Hotel. In 2019 the Applicant made a complaint to the President of the Anti-Discrimination Board (ADB) against Karasumi Holdings Pty Ltd trading as the Bar Broadway. That matter was declined and referred to this Tribunal under s 92 and 93A of the Anti-Discrimination Act 1977 (the Act).
On 13 October 2020, the ADB received a complaint under the NSW Anti-Discrimination Act 1977 from the Applicant against Rosemary Ellen Curran Saul (the First Respondent) alleging unlawful victimisation. On 29 January 2021, the ADB received a further complaint from the Applicant against both the First Respondent and Justin Aitken (the Second Respondent) alleging further unlawful victimisation.
On 15 February 2021, the Applicant's complaints were partially accepted for investigation as follows. The remainder of the complaints were declined under s 89B(2)(a) of the Act: 1. that the First Respondent unlawfully victimised the Applicant when on 22 April 2020, she allegedly made a false Apprehended Personal Violence Order (APVO) application against him because of his prior complaint to ADNSW; and 2. that the First and Second Respondents subjected him to further victimisation on 28 October 2020 when they issued him with a notice permanently banning him from Bar Broadway.
On 2 July 2021 the ADB declined the complaints pursuant to s 92(1)(a)(i) of the Act on the basis that the complaints were lacking in substance. On 13 July 2021 the Applicant requested that the matter be referred to this under section 93A of the Act. The Tribunal has power to grant, or to refuse to grant, leave for that part of the complaint accepted for investigation by the President and referred to the Tribunal under s 93A of the Act: s 96(1) of the Act.

Legal Principles

A person may make a complaint to the President on their own behalf alleging that a person(s) has contravened a provision of the Act: s 87A(1)(a)(i) of the Act.
Where the President decides to accept a complaint under s 89B, she must investigate that complaint: s 90(1) of the Act. If the President is satisfied at any time of the investigation that the complaint is lacking in substance, she may decline the complaint in whole or in part: s 92(1)(a)(i). A complaint will be "lacking in substance" if it can be demonstrated that there exists no factual basis for the allegations or that the complaint is "not reasonably arguable": Langley v Niland [1981] 2 NSWLR 104 at 107 and Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at [22].
Where, as here, the President declines a complaint under s 92 of the Act, the President must refer the complaint to the Tribunal if she has received a written request from the complainant to do so: s 93A of the Act.
Where a complaint is referred to the Tribunal at the request of a complainant under s 93A(1), that complaint may not be the subject of proceedings before the Tribunal without the leave of the Tribunal: s 96(1) of the Act.
Section 96(1) gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones v Ekermawi [2009] NSWCA 388 at [58] (Jones); Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [25] ("Ekermawi"). That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant's rights under that scheme: Jones at [57]; Ekermawi at [32]. The question of leave involves evaluating whether it is "fair and just" to grant or refuse leave in the particular circumstances of the case: Ekermawi at [36], [37]; Jones at [58]. In deciding whether to grant leave, the Tribunal may have regard to the grounds which the President may take into account in declining a complaint under s 92 of the Act: Jones at [60].
The applicant bears the onus of persuading the Tribunal that it is appropriate for leave to be granted. While it is not the Tribunal's role when determining a leave application to decide whether the complaint has been substantiated, the merits of the complaint are relevant.
Section 50 of the Act provides: 50 VICTIMISATION (1) It is unlawful for a person ("the discriminator") to subject another person ("the person victimised") to any detriment in any circumstances on the ground that the person victimised has-- (a) brought proceedings against the discriminator or any other person under this Act, (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act, (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or (d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. (2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

Is the complaint lacking in substance?

To determine whether, as the Respondents contend, the complaints are lacking in substance, it is necessary to first identify the elements the Applicant must establish if leave is granted for the complaints to proceed.
To prove victimisation the Applicant would have to prove that: 1. he did one or more of the things listed in s 50 (a) - (d) of the Act, which I will refer to as the "trigger"; 2. the Respondents subjected him to a detriment; and 3. the detriment was on the ground that the Applicant did one of the things listed in s50 (a) - (d) of the Act, which I will refer to as "causation": see Carroll v Department of Family and Community Services [2015] NSWCATAD 82 at [24].

Trigger

There is no dispute that the Applicant made a complaint or complaints to the ADB against the Respondents' employer in 2019, in relation to his treatment at Bar Broadway. This would amount to a "trigger" for the purposes of s 50(1)(a) of the Act.

Detriment

The Applicant has alleged that the detriment he has suffered includes being the subject of a "false" APVO brought by the First Respondent. The fact that the First Respondent sought an APVO against the Applicant is not disputed. Nor is it disputed that the APVO was withdrawn following both parties entering into undertakings on 7 October 2020.
The Respondents provided evidence of the APVO application, which included the following: Last Thursday 16th April 2020 [FBJ] approached the PINOP in Central Park Mall next to her work. [FBJ] approached her in a hateful and aggressive and threatening manner, he also encroached her personal space. [FBJ] screamed at the PINOP many times, calling me a "faggot hater" among other things, and the PINOP felt physically threatened by him. [FBJ] brought legal proceedings against the PINOP's employers in the anti-discrimination board. [FBJ] was unsuccessful in these proceedings and has appealed that decision and is waiting upon a further appeal hearing date. The PINOP's place of business is closed due to COVID-19, however I am still required to work on site. In empty streets the PINOP is fearful of being approached again by [FBJ]. The entrance to her work is in a small lane way frequented by [FBJ] and the PINOP often enter and leave the premises alone. The PINOP has had to tell my employer that I cannot currently attend work, such is the fear and anxiety of being attacked and suffering injury and hurt. The PINOP has been targeted in such an irrational and unprovoked manner and believes [FBJ] to be mentally unwell and is in constant fear for her safety and well being in the workplace and surrounding area. In the PINOP's 15 years working in licensed premises, she have never felt this much anxiety or this physically threatened by an individual.
The APVO was dismissed in the First Respondent's inadvertent absence and she then applied for the dismissal to be annulled. That application was withdrawn following the Applicant and First Respondent agreeing to undertakings on 7 October 2020 in the following terms: The Court acknowledges the following undertakings of the parties, and dismisses the Application for an Apprehended Personal Violence Order: 1. [FBJ] agrees not to: a. Assault, threaten, stalk, harass or intimidate, destroy or attempt to destroy any property of Rosemary CURRAN SAUL; b. Try and find Rosemary CURRAN SAUL; c. Go in to Bar Broadway, 2 Broadway SYDNEY NSW 2008 for a period to two years from 7 October 2020; d. Loiter or linger near any window, entrance or exit of Bar Broadway, 2 Broadway NSW 2008 for a period of two years from 7 October 2020; e. Go into any place of residence of Rosemary CURRAN SAUL; f. Contact Rosemary CURRAN SAUL except if that contact is through a lawyer, or for the purposes of advising Rosemary CURRAN SAUL of the details of his lawyer. 2. Rosemary CURRAN SAUL agrees not to: a. Try and find [FBJ]; b. Go into any place of residence or work of [FBJ]; c. Contact [FBJ] except if that contact is through a lawyer, or for the purposes of advising [FBJ] of the details of her lawyer
The Applicant submitted at hearing that he was coerced into providing the undertaking, that he was not properly represented or advised in relation to the undertaking, and that the terms of the undertaking had been breached by the First Respondent. From those submissions it appears that the detriment suffered by the Applicant is alleged by him to be the imposition of the terms of the undertaking, rather than the APVO which was dismissed and withdrawn.
The application by the First Respondent for an APVO against the Applicant is not a detriment in circumstances where the application was dismissed and then the application for its reinstatement was withdrawn. Even if the application was granted, the imposition of its conditions, specifically the Applicant's barring from Bar Broadway for a period of 2 years, may not have amounted to a detriment for the purpose of consideration in these proceedings because the complaint which was accepted for investigation by the ADB was regarding the making of the application for an APVO on 22 April 2020, rather than its terms of enforcement. I therefore find that there was no detriment suffered by the Applicant in relation to this complaint.
The Tribunal is required to accept the Applicant's complaints at their highest, hypothetically assuming that these allegations of detriment are factually correct for the purpose of assessing this leave application. The terms of the undertaking were agreed by the Applicant and the First Respondent in the Local Court. On the Applicant's evidence he was represented by counsel, being the duty barrister, and there is therefore no basis for finding that he was unrepresented or coerced into giving the undertakings. Even if he were unrepresented or coerced, this Tribunal has no power or jurisdiction to void or otherwise take any action or make orders or directions in relation to those undertakings or any other matter arising in those proceedings. However the Tribunal can make findings on the effect that the conditions contained in the undertakings have had on the Applicant. In those circumstances, if the Tribunal is wrong in determining that the making of the application for an APVO did not constitute a detriment, and that the detriment was the imposition of conditions on the Applicant as a result of the agreed undertaking which ultimately resulted from the bringing of that application, I accept the Applicant's evidence that the imposition of the condition to be excluded from Bar Broadway for a period of 2 years constitutes a detriment.
The second detriment said to have been suffered by the Applicant as a result of the trigger was the letter dated 28 October 2020 signed by both Respondents, in which the Applicant is informed that his 12 month exclusion from Bar Broadway would be extended "indefinitely". I accept that the imposition of an indefinite exclusion of the Applicant from attending Bar Broadway, as informed by the letter of 28 October 2020, constitutes a detriment to the Applicant.

Causation

Having accepted for the purpose of this leave hearing that the Applicant suffered a detriment or detriments, the Applicant must then prove causation, by showing that the detriments arose because of, or that they could be attributed to the trigger discussed above.
Considering each complaint in turn, the evidence before the Tribunal does not support a finding that the First Respondent sought the APVO against the Applicant on 22 April 2020 because of the trigger of the Applicant's 2019 complaint, or that the conditions in the agreed undertaking were imposed on the Applicant because of that trigger. Although the trigger is referred to in the application for the APVO, it is provided for context rather than as the basis for the APVO. The basis of the APVO is clearly identified as the anxiety and physical threat experienced by the First Respondent as a result of the Applicant's alleged contact with her on 16 April 2020. The Bar Broadway is her place of employment and I find that it is for this reason the detriment of restricting the Applicant from attending the Bar Broadway was imposed on the Applicant, not because of the previous proceedings brought by him as the trigger.
In relation to the notice of 28 October 2020 imposing the indefinite exclusion on the Applicant, the evidence of causation is less clear. A two year exclusion from Bar Broadway was agreed to by the Applicant and the First Respondent on 7 October 2020. Two weeks later, an indefinite exclusion is imposed, having "taken into account your recent "interaction" with the Licensee of the Hotel, which resulted in recent court proceedings". What, if anything, changed in the interim? It is not entirely clear what the "recent interaction" referred to by the Respondents was, in circumstances where the conduct of the Applicant towards the First Respondent which became the subject of the APVO had been dealt with by way of the agreed undertakings on 7 October 2020. At hearing it was conceded that if the "recent interaction" and "recent court proceedings" were not referring to the conduct referred to in the APVO application and the APVO proceedings, it was open for the Tribunal to consider the victimisation basis instead.
The Tribunal questioned what evidence there was of other interactions between the parties between 7 October 2020 and 28 October 2020. The Respondents submitted that the Applicant had continually attempted to contact the First Respondent through her legal representatives to pursue his allegations against her and to attempt to recant on the agreements made in the undertakings on 7 October 2020. This correspondence included a letter dated 19 October 2020 and various repetitive emails, which were not provided to the Tribunal, however the Tribunal did have copies of similar correspondence from the Applicant dated November 2020, January 2021, February 2021 and April 2021.
On review of the complaint referral from the ADB, it appears that the Applicant's complaints were not accepted (in part) for investigation by the ADB until 29 January 2021 and were not provided to the Respondents' representatives for response until 16 February 2021. This was not disputed by the Applicant. The Applicant's complaint made to the ADB on 13 October 2020was therefore not a trigger for any alleged victimisation. In the absence of any evidence to the contrary, the Tribunal accepts the respondent's explanation for the letter of 28 October 2020, as outlined in their response to the ADB of 30 March 2021: The respondents decided to exclude the complainant indefinitely after consideration of the Complainant's conduct on and following 17 April 2020, and his subsequent attempt to recant on his agreement to Undertakings that led to the finalisation of the Annulment Application and the APVO Application.
Taking the Applicant's evidence at its highest, I find that there is no causal connection between the Applicant's complaints to the ADB and the letter of 28 October 2020 extending the 12 month exclusion of the Applicant from Bar Broadway "indefinitely".

Should leave be granted or refused?

The Respondents submitted that the Applicant's complaints of victimisation were brought to agitate ongoing dissatisfaction with the conditions imposed by the agreed undertakings resulting from the APVO, and dissatisfaction with the conclusion of his 2019 complaint. They submitted that it was not in the public interest to agitate these issues "in the incorrect forum". I agree that it would be inappropriate for the Applicant to agitate these matters in the Tribunal under the guise of a victimisation complaint, but I make no findings that this has or was intended to occur.
The Respondents submitted that it would not be fair or just for the Tribunal to grant leave because of the time and resources which would be required to defend a matter with no substance. Further, the Tribunal should give special consideration to the toll which proceedings would take on Ms Saul, in circumstances of the APVO proceedings and their underlying conduct which had adversely affected her emotionally. I accept that consideration of the impact on Ms Saul is relevant to the Tribunal's consideration, as is the impact proceedings would have on Mr Aitken who is named as a Respondent to the complaint because of his signature to the letter dated 28 October 2020, but was otherwise not referred to by the Applicant in evidence or submissions.
The President of the ADB declined the Applicant's complaints as lacking in substance, and the Tribunal has agreed with that assessment for the reasons discussed above. On consideration, the Tribunal concludes that it is not fair and just for the complaints of victimisation to proceed.

Order

Leave for the complaints of victimisation to proceed is refused under s 96(1) of the Anti-Discrimination Act 1977.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 November 2021

At a glance

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Judgment (9 paragraphs)

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Cases Cited (4)