Robert Klewer (Mr Klewer) ran a market stall at the Harbourside Markets in Coffs Harbour selling plants. Harbourside Markets is the trading name for Happy Harbourside Pty Ltd (the Respondent), the sole director of which is Kim Towner (Ms Towner).
On 27 July 2021 Mr Klewer settled discrimination proceedings in this Tribunal against Ms Towner and the Respondent and entered into a deed of release which made no admissions as to liability. On 30 January 2023 and 17 March 2023 the President of the Anti-Discrimination Board of NSW (ADNSW) received complaints lodged by Lucy Klewer on behalf of her son, Robert Klewer (the Applicant) against the Respondent, alleging victimisation pursuant to s 50 of the Anti-Discrimination Act 1977 (the Act) on the basis that the Applicant had lodged a previous disability discrimination complaint.
The Applicant alleged that an employee of the Respondent, John, was abusing and intimidating Mr Klewer by taking pictures of his stall and yelling at him. The Applicant also alleged that the stall had been isolated and placed on the fringe of the markets and the stallholder agreement terminated because of the discrimination complaint made in 2021, and that this conduct amounted to victimisation. The Respondent claimed that Mr Klewer's stallholder agreement had been terminated on 9 February 2023 due to ongoing breaches of the agreement.
ADNSW investigated the complaint and declined it as lacking in substance under s 92(1)(a)(i) of the Act, for the following reasons:
- Other than mere conjecture, the complainant has not established the Respondent victimised Robert Klewer, ie subjected him to a detriment that he would not have otherwise been subjected to but for having lodged a previous discrimination complaint with Anti Discrimination NSW in 2021;
- Assertions by the complainant that the respondent is victimising Robert by causing the exacerbation of a condition he has does not show unlawful victimisation;
- Even if there has been a breach of the previous conciliation agreement, this does not establish unlawful victimisation;
- The Respondent provided supported reasons for the actions it took in managing the arrangements for Robert Klewer's stall and terminating his stallholder agreement which do not equate with unlawful victimisation under the Anti Discrimination Act 1977 (NSW)
- Having considered the information provided to ADNSW by the parties, I have concluded that there is insufficient information to support the complaint contention that Robert Klewer was victimised for having lodged a previous discrimination complaint.
At the Applicant's request, the President referred the complaint to the NSW Civil and Administrative Tribunal (the Tribunal) as required by s 93A of the Act. Pursuant to s 96(1) of the Act, leave must be granted by the Tribunal for the complaint to proceed.
A hearing on the question of whether leave ought to be granted by the Tribunal took place on 27 July 2023 and 13 September 2023 by AVL. Both parties made oral submissions. The Applicant provided the Tribunal with a bundle of documents containing a Statement of Robert Klewer dated 30 June 2023, three sets of submissions, email correspondence with ADNSW, medical correspondence from an ophthalmologist, GP and Epilepsy Action Australia regarding Mr Klewer's medical conditions, and correspondence with the Respondent and the Tribunal registry.
The Respondent opposed leave being granted, provided the Tribunal with short written submissions, and relied on the material provided to ADNSW including a response to the complaint, Statutory Declarations or witness statements from 9 other stall holders, a copy of the Deed of Release dated 27 July 2021, email correspondence with the Applicant, insurance records, a copy of the stallholder application and agreement with the Applicant dated 29 November 2022, correspondence with ADNSW, and copies of the correspondence to the Applicant dated 6 January, 10 January 2023 and 9 February 2023 alleging breaches of the stallholder agreement.
At the hearing I explained to the Applicant the nature of a leave hearing and what was required of an application under s 96 of the Act. I explained that they would need to demonstrate to the Tribunal that it was just and fair in the circumstances for leave to be granted, in line with the authorities in Jones v Ekermawi [2009] NSWCA 388 (Jones); Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 (Ekermawi). I explained that the Tribunal would accept the evidence they provided to the Tribunal at its highest for the purpose of determining whether leave ought to be granted.
For the reasons that follow, I have decided to refuse leave for the Applicant's complaint to proceed.
[2]
Legal Principles
A parent or guardian person of a person who lacks the legal capacity to lodge a complaint (for example, because of age or disability) may make a complaint to the President alleging that a person(s) has contravened a provision of the Act: s 87A(1)(b) 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 at [58]; Ekermawi at [25]. 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].
In determining whether to grant or refuse leave for a complaint to proceed pursuant to s 96(1) of the Act, the applicant's evidence must be taken at its highest - that is, everything the applicant has put in evidence is accepted as true - and then the Tribunal determines whether he could possibly succeed in his complaint of discrimination: Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35]).
Section 50 makes it unlawful to subject a person victimised to detriment on the grounds that they have made or could make a complaint under the Act:
(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.
As discussed in Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [37]:
'One of the things listed in s50(1)(a) to (d) was at least one of the 'real', 'genuine' or 'true' reasons for being subjected to a detriment. As for complaints of discrimination, for that to be the case, that reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment.'
[3]
Consideration
The fact that the Applicant had previously brought anti-discrimination proceedings against the Respondent was not disputed. Section 50(1)(a) of the Act is therefore enlivened and a complaint of victimisation could be accepted to have occurred if a) the Respondent's conduct towards the Applicant was considered detrimental and b) the "real, genuine or true reason" for the conduct was because the Applicant had previously brought proceedings under the Act against the Respondent.
Considering detriment first, the Applicant alleged that Mr Klewer had been subjected to detriment by:
1. Being abused and intimidated by an employee of the Respondent and being yelled at;
2. Having pictures taken of his stall;
3. Having his stall isolated and placed on the fringe of the markets; and
4. The termination of the stallholder agreement.
On review of the evidence provided by the Applicant it appears that a further detriment was alleged, being the refusal by the Respondent to allow the Applicant to sell vegetables at his stall.
For the purposes of determining a leave application, as discussed above, the Tribunal accepts the Applicant's evidence without it being tested and takes it at its highest. Accepting the Applicant's evidence, I agree that being abused and intimidated and yelled at by an employee of the Respondent would amount to a "detriment", as would the termination of the stallholder agreement. I also accept on the Applicant's evidence that requiring him to place the stall on the fringe of the markets, near the garbage bins, would constitute a detriment, as it subjected him to the associated smells. I do not accept, however, that photos being taken of the Applicant's stall amounted to a detriment. The Applicant can have no knowledge of the intention of the individual taking the photos and so evidence from the Applicant as to the reasons for photos being taken by another individual is not accepted. Nor do I accept that refusing to allow the Applicant to sell vegetables at his plant stall constitutes a detriment, as there is no evidence from the Applicant explaining what exactly that detriment is or would be.
There is no evidence, however, that Mr Klewer was subjected to these detriments because he made a previous discrimination complaint, other than his and the Applicant's assertion. There was no direct statement made by the Respondent or its employees or witnesses regarding those previous proceedings. As there is no direct evidence of causation, a causal link between the Applicant's previous proceedings and the alleged treatment would have to be established by inference from the available facts. Any such inference must be logical and reasonable and must show that a connection is probable. An inference cannot be made where more probable and innocent explanations are available on the evidence: see Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262; Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70]).
The Respondent's evidence from multiple stallholders alleges that Mr Klewer was, at the least, argumentative with other stallholders. Even if the Tribunal accepts that an employee of the Respondent yelled at the Applicant, there seems to be ample evidence of conflict engaged in by the Mr Klewer which could provide context for a verbal altercation involving any number of issues other than the previous discrimination proceedings. A reasonable explanation given for having space between the Mr Klewer's stall and other stalls and the location allocated to him was that other stallholders did not want to be near his stall, which was supported by a number of the witness statements and statutory declarations provided by the Respondent. The Respondent issued breach notices to the Applicant on 6 January 2023 for exceeding the allotted stall space, interfering with other stall holders and causing conflict, and swearing at a customer; on 10 January 2023 for selling vegetables without approval; and on 9 February 2023 (in the letter of termination) for moving the stall with permission and not protecting the grass as required, refusing to pay fees at the gate or at the market, and complaining to other stallholders causing further conflict. Given Mr Klewer signed a stallholder agreement and was reminded on each occasion of that agreement and how he was breaching its terms specifically, the explanation given by the Respondent for the notices and ultimately termination of the stallholder agreement provides a more reasonable explanation than because Mr Klewer had previously brought proceedings under the Act against the Respondent.
In the circumstances the Tribunal cannot draw the inferences necessary to demonstrate a causal connection between the alleged detriments suffered by the Respondent's conduct and the previous discrimination proceedings brought by Mr Klewer. In my view, it is not probable that the Applicant can establish a causative connection between the conduct of the respondent and the previous discrimination proceedings brought by Mr Klewer against the Respondent and its director, Ms Towner. For that reason, the complaint lacks substance and I agree with the President of ADNSW's assessment and decision in declining the complaint.
In considering nevertheless whether it would be fair and just for the complaint to proceed, I take into account the fact that refusing leave will determine the Applicant's complaint to finality and the impact this has on his ability to pursue his rights under the Act. The Applicant gave evidence, which I accept, that Mr Klewer had limited avenues of income, but had been running market stalls since 2009 and specifically with the Respondent's markets since 2014. The Respondent gave evidence however that there were 10 to 15 other markets in the area. I also take into consideration, although to a much lesser extent, the impact this would have on the Respondent as a small business, and on its other stallholders who have expressed complaints against Mr Klewer in relation to his conduct as a stallholder.
In all the circumstances I find that it would not be fair and just for the Applicant's complaint to proceed. Leave is therefore declined pursuant to s 96(1) of the Act.
[4]
Order
1. Leave is refused under s 96(1) of the Anti-Discrimination Act 1977 (NSW) for the complaint against the Respondent to proceed.
[5]
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
[6]
Amendments
07 March 2024 - error
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: 07 March 2024
Parties
Applicant/Plaintiff:
Klewer
Respondent/Defendant:
Happy Harbourside Pty Ltd trading as Harbourside Markets