Moavenian v Transport for NSW [2021] NSWCATAD 77 | Case summary

NCAT Administrative and Equal Opportunity|2021-03-10

The applicant's case

The applicant's case can be summarised as follows: 1. Both the Commissioner and Transport are qualifying bodies under s 12 of the ADA. 2. The Commissioner was an agent of Transport for the purposes of s 53 of the ADA in preparing the report under s 12 of the Driving Instructors Act. 3. The Commissioner and Senior Constable Cotton contravened s 7 of the ADA by: 1. directly discriminating against him on the ground of race, in particular on the ground of his speaking English with an accent as a characteristic of race (Perera v Commissioner of Corrective Services [2007] NSWADT 115). 2. treating him less favourably than they would have treated a person without such an accent in the same circumstances or in circumstances which are not materially different. 1. As a result of the discrimination, the issue of Mr Moavenian's licence was delayed by Transport. 2. In instructing Transport not to approve Mr Moavenian's licence the Commissioner and Senior Constable Cotton caused, induced, aided or permitted unlawful discrimination by Transport under s 52 of the ADA. 3. He was victimised by the Commissioner and Senior Constable Cotton contrary to s 50 because he had previously commenced legal proceedings against the Commissioner and raised complaints with the AHRC.
The undisputed evidence was that Mr Moavenian first applied for a driving instructor's licence in 2017. On that occasion the licence was refused. As part of that application, Transport notified the Commissioner of Police of the application and Mr Moavenian was interviewed by Senior Constable Cotton for the purposes of providing a report under s 13.
The applicant relies on a letter from Transport dated 21 March 2019 in which it was stated that "it will be necessary for you to obtain a satisfactory report from the NSW Police Force" to assist in determining his fitness to hold a licence.
The evidence shows that in 2017 when assessed, Mr Moavenian had 5 traffic offences in his 4 years of driving in Australia and received a Demerits Warning letter in September 2017. The applicant relies on comments in and annotations on the report to establish discrimination. In particular: 1. The 2017 report on the applicant by Senior Constable Cotton noted "he is a responsible member of the community had has no criminal history which would prevent his application being approved by the Wollongong LAC" but he "displayed some difficulty speaking English during the interview process and is applying for his Drivers Instructors licence as part of a Refugee Support Organisation". 2. The report was noted by a senior officer that he was "deemed not suitable after face to face interview… poor traffic history coupled with communication in English language." 3. The template for the questionnaire to be completed by police did not refer to language skills. 4. In 2018 the applicant appealed the decision to refuse his licence at Wollongong Local Court but was unsuccessful. He then lodged a discrimination complaint against Senior Constable Cotton with the AHRC which was terminated. 5. When Mr Moavenian reapplied in 2019, Senior Constable Cotton noted the above complaint and Local Court proceeding in his report. He also sought legal advice. That advice included that for the reason of his traffic record and "for abundant caution" the licence would not be recommended as it was less than two years of demonstrated compliance with road laws. 6. The report again noted Mr Moavenian "continues to display some difficulty speaking English". 7. Senior Constable Cotton recommended that he was not suitable to hold a licence at this time as his traffic record does not reflect the ability to act as a role model for inexperienced drivers under his instruction. 8. Acting Inspector Parker noted on the 2019 report that Mr Moavenian was deemed not suitable in 2017 and that he had appealed this decision. He continued "No new information has been supplied by the applicant and his situation does not appear to have changed. Application for Driving Instructors licence is opposed."

The first respondent's case

Transport for NSW submits that there was no material delay in the processing and issuing of the applicant's licence and therefore he was not treated less favourably nor suffered any detriment. Even if there were a delay, this does not come within s 12 of the ADA.
The applicant's licence application was granted. The licence application was determined on his character, fitness, competence and propriety to hold a licence. His command of the English language was not a relevant factor. There is insufficient evidence to find or infer that any delay (which is denied) was on the ground of race.
The second and third respondents were not acting as agents of Transport. They were performing a statutory function. Section 54 of the ADA provides that anything done by a person necessary to comply with an Act or regulation of a State is not unlawful discrimination.

The second and third respondent's case

The second and third respondents dispute that there was discrimination by the first respondent which could lead to a conclusion that they contravened s 52.
They submit that Transport was the ultimate decision maker and was only obliged to take the report into account. In this case the licence was granted contrary to the Commissioner's recommendation. They dispute that the report contains any discriminatory material.
The complaints of victimisation are also lacking in substance because: 1. The recommendation not to grant the licence is not a "detriment" as he was granted the licence 2. There is insufficient evidence to find that the recommendation was made because of any proceedings or complaint made by the applicant.
Further the complaint should be declined because it is not in the public interest to take further action and the nature of the conduct alleged is such that further action is not warranted.

Consideration

I accept that the first respondent is a qualifying body. The first respondent confers an authorisation that is needed to carry on the occupation of driving instructor. The second respondent does not meet the requirements of a qualifying body, in my view. It provided a report which was considered by the qualifying body. The legislation did not provide that the Commissioner's report was determinative of the outcome or necessary for the issue of a licence; it stated that it must be taken into account by Transport. Although the nature of the report may have been described differently in correspondence, this does not change the legal nature of the report.
This means that the applicant's claim of direct discrimination against the second and third respondents cannot proceed, as it was cast as a complaint of discrimination in the area of qualifying bodies. It is not necessary therefore to determine whether the references to Mr Moavenian having difficulty speaking English amounted to evidence that he was treated differently on the ground of his race by the second and third respondents.
The first respondent, as a qualifying body, did not refuse or fail to confer the licence on the applicant. The applicant relies on s 53 of the ADA therefore, to link the functions performed by the first and second respondents under an agent and principal relationship.
Section 53 does not define "agent" or "principal". The Macquarie Dictionary definition of "agent" is relevantly: "a person authorised to act on behalf of another".
Sections 12, 13 and 14 do not indicate that the Commissioner of Police was authorised to act on behalf of the Authority. The Commissioner was assigned a function by the statute and his role was limited to that function. He did not represent Transport in any capacity. I am not satisfied therefore that the first respondent is liable pursuant to s 53 of the ADA for any unlawful conduct of the second or third respondents.
That being the case, as there is no evidence of direct discrimination by the first respondent against Mr Moavenian, he cannot rely on s 52 of the ADA against the second and third respondents. This is because in order to succeed under s 52, he must show that the second and/or third respondents caused, instructed, induced, aided or permitted the first respondent to do something which is unlawful under the ADA (Carroll v Department of Family and Community Services [2015] NSWCATAD 82; Elliott v Nanda & Commonwealth [2001] FCA 418). In the absence of any unlawful act by Transport, s 52 cannot apply.
As to victimisation, the applicant must establish that he was subjected to a detriment by the second and third respondents on the ground that he had made a complaint about their conduct to the AHRC, as the proceedings in the Local Court appealing the 2017 refusal were not made under the ADA.
There is no available evidence from which such an inference can be drawn and I am not satisfied that the applicant could succeed in establishing that the respondents subjected him to detrimental treatment because of his complaint.
In these circumstances the Tribunal cannot be satisfied that there is evidence of the causation required for the applicant to make out his complaint of victimisation.
I conclude that his complaints against the first, second and third respondents lack substance and the conduct alleged in those respects, if proven, would not disclose the contravention of a provision of the ADA. Accordingly it is not fair and just that leave should be granted for the complaints to proceed. Order 1. Leave for the complaints to proceed under s 96(1) of the Anti-Discrimination Act 1977 is refused.

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: 26 March 2021

Leave to proceed with complaint

Section 92 of the ADA provides: "92 President may decline complaint during investigation (1) If at any stage of the President's investigation of a complaint - (a) the President is satisfied that - (i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or (ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or (iii) the nature of the conduct alleged is such that further action by the President in relation to the complaint, or any part of the complaint, is not warranted, or (iv) another more appropriate remedy has been, is being, or should be, pursued in relation to the complaint or part of the complaint, or (v) the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body, or (vi) the respondent has taken appropriate steps to remedy or redress the conduct, or part of the conduct, complained of, or (vii) it is not in the public interest to take any further action in respect of the complaint or any part of the complaint, or (b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint, the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint. (2) The President, in a notice under this section, is to advise the complainant of - (a) the reason for declining the complaint or part of the complaint, and (b) the rights of the complainant under sections 93A and 96."
Where the President has declined a complaint under s 92 of the ADA the President must refer the complaint to the Tribunal if he or she has received a written request from the complainant to do so (s93A).
Where a complaint is referred to the Tribunal on the requirement of a complainant under s 93A(1), as has happened in this case, the complaint may not be the subject of proceedings before the Tribunal unless the Tribunal grants leave (s 96(1)).
Section 96 of the ADA gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed, which is not confined to the grounds on which the President declined the complaint, although the Tribunal may have regard to those grounds. That discretion must, however, 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. Leave must be granted or refused depending on what is fair and just in the particular circumstances. It is for the plaintiff to establish that the leave should be granted (Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25-36] [58-61]).

Moavenian v Transport for NSW

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Judgment (5 paragraphs)

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