Victorian Civil and Administrative Tribunal|2012-08-10

Pham v Drakopoulos & Ors (Anti-Discrimination) [2012] VCAT 1198 (10 August 2012)

Anti-Discrimination List - claims of direct and indirect discrimination - various attributes claimed - various areas of activity claimed- other claims - time frame from June 2011 and ongoing - application to strike out or dismiss complaints - application made after applicant had given his evidence - all applications and complaints dismissed - Equal Opportunity Act 1995 Part 3 and ss 5, 8, 9, 97 and 98 - Equal Opportunity Act 2010 Part 4 and ss 4, , , and - -

Pham v Drakopoulos & Ors (Anti-Discrimination) [2012] VCAT 1198

All applications and complaints made by the applicant are dismissed.

Mr Pham rented and was living in the garage of a private home located in the City of Greater Dandenong. He was concerned about the state of the communal kitchen, the lack of fire alarms and the "sticks and pikes" which he says had been left by the landlady on racks in the garage he was occupying.
In June 2011 he says that on health grounds he reported an unregistered rooming house to the City of Greater Dandenong.
Mr Drakopoulos, a council employee, came and inspected the house. Mr Pham says that he showed Mr Drakopoulos the pikes and sticks in the garage and other dangerous goods and told him there were no fire alarms.
Mr Pham says that Mr Drakopoulos left and did nothing else, but apparently gave a permit for a rooming house without requiring a fire alarm in the garage.
On 9 November 2011, the City of Greater Dandenong sent Mr Pham the following letter :

I am writing to inform you that by living in the garage at the above address, you are in breach of Section 40(10) of the Building Act 1993;

40 Occupation must be in accordance with permit

(1) A person must not occupy a building in contravention of the current occupancy permit or permits issued under this Division for the building.

Penalty: 120 penalty units, in the case of a natural person.

600 penalty units, in the case of a body corporate.

The reason for this is that a garage is a non habitable building.

The garage is not fit for human occupation as the floor is not properly sealed to prevent rising damp, the wall and ceiling of the garage is not insulated, the ceiling height may not be a minimum of 2.4m the garage is not provided with openable window for natural light and ventilation and there are no smoke detector within the garage.

All these issues affect the health, amenity and safety of a person occupying this space.

As per the current building order, you must immediately cease the occupation of the garage and vacate the garage.

If you continue to occupy the garage, a charge and summon will be served to you for illegal occupation of the garage and a court proceeding will commence at the Magistrates Court.

Should you require further clarification on the above matter, please contact Peter Truong on 9238 1486.

As I understand it, there have been a number of proceedings involving Mr Pham and his occupation of the garage.
On 18 May 2012, Mr Pham lodged an application in the Anti-Discrimination List claiming that Mr Drakopoulos, Mr Peter Truong and Mr Jim Hansen, who are council employees, discriminated against him.

Mr Pham claims he has been discriminated against by the three respondents, whom he called "service providers".
On the application form, he ticked a number of "attributes" for his claim. They are -

personal association with someone who has, or is assumed to have, one of these personal characteristics.

In the section asking in what "area" did the discrimination occur, he ticked the following options -

He also ticked the following options, claiming -

He claims the discrimination happened from June 2011 and is ongoing.
In the section on the form headed "What happened" and which indicated VCAT needed "to know what happened to make you think you have been discriminated against, victimised, sexually harassed or vilified" ... and asked him "to please tell us -
- what happened
- why you think it is discrimination, sexual harassment, victimisation or vilification
- what happened each time
- who was responsible for each thing that happened and what their relationship is to you"

"If you are making an application alleging discrimination, it is important to explain how you were discriminated against because of the attribute(s) you have selected above"

duty of care failure to remove dangerous material and items

Mr Pham's application includes a period from June 2011 to 31 July 2011 which is before the commencement of the Equal Opportunity Act 2010 (the 2010 Act), which commenced on 1 August 2011. The complaint is claimed to be ongoing. Therefore, his application must be considered with reference to both the 2010 Act and the Equal Opportunity Act 1995 (the 1995 Act). Both Acts prohibit discrimination in defined areas of activity on the basis of listed attributes.[1]
In summary, to make out his claim of direct discrimination, Mr Pham has to satisfy me that the respondents or any one or more of them, when they have been engaged in a particular "area of activity", because of an attribute he has, has treated him less favourably than they would have treated someone without an attribute, or with a different attribute, in the same of similar circumstances.[2]
For anything on or after 1 August 2011, Mr Pham must satisfy me that the respondents or any one or more of them, when engaged in a particular "area of activity", has treated him unfavourably because of that attribute.[3]
In either case, discrimination may be established whether or not the attribute was the only or dominant reason for the treatment, as long as it is a substantial reason.[4]
During the course of the hearing, Mr Pham also claimed that they had indirectly discriminated against him.
To succeed in a claim of indirect discrimination[5] despite some differences between the two Acts, Mr Pham has to point with some particularity, to what "requirement, condition or practice" one or more of the respondents has imposed, that disadvantages him because of his attribute and is not reasonable[6], or with which he cannot comply because of his attribute[7].
Mr Pham's claim of victimisation can only succeed if the conduct he complains of arises because he has already made a complaint or brought a dispute to the Commission.[8]
To succeed in establishing that someone has authorised or assisted discrimination, Mr Pham would need to show that the person has requested, instructed, induced, encouraged, authorised or assisted another person to contravene the Act.[9]
To succeed in his claim of racial vilification, Mr Pham needs to show that one or more the respondents because of his race, has engaged in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person.[10]
In these proceedings, the burden of proof is on the applicant, Mr Pham, who must prove his case on the balance of probabilities.

The hearing of his application proceeded on 31 July 2012. On 16 July 2012, I had made the following directions :
1. The City of Greater Dandenong is added as a Respondent to the proceeding.
2. This matter is listed for hearing commencing at 10:00 a.m. on 31 July 2012 at 55 King Street Melbourne and the Applicant is to present at the hearing all the evidence of which he intends to rely.
3. The Respondents have liberty at the conclusion of the applicant's evidence to call its own evidence or to apply for an adjournment to prepare a response if the justice of the case requires.
4. In the alternative, at the conclusion of the Applicant's case, the Respondent shall be at liberty to make a submission that the application should be dismissed and this application can be made without the Respondents being put to their election and shall be determined as if it was a final submission on the balance of probability.
On that day I had added as a respondent to the application the City of Greater Dandenong explaining to Mr Pham that the council was mentioned in his application. I explained that it could be to his advantage to add the council as a respondent, were I to find that there had been breaches of the Act. I also explained to Mr Pham that at the hearing he needed to bring all the material on which he intended to rely in support of his case, and that he would have the opportunity to tell the Tribunal what he wanted to say.
As the hearing was about to commence, Mr McLaughlin appearing for the respondents, drew to my attention that Mr Pham was recording the proceedings himself. As it turns out, the respondents did not object to this, so I gave him leave to do so.
I specifically asked the parties if there were any other matters that they wished to raise before commencing. The only matter Mr Pham raised was a request for written reasons.
Mr Pham commenced presentation of his case saying he first wanted to cross-examine the respondents. I explained he needed to give his evidence first. He gave his evidence. It was a mixture of evidence and submissions. He tendered a letter from the council dated 9 November 2011 and showed me pictures on his laptop of the pikes and sticks, and the kitchen. Otherwise, all his evidence was given orally. At various points during the hearing, I explained to him what he must satisfy me about to prove his case and what he needed to show, and clarified his evidence. I was satisfied he was given the fullest opportunity to present his case.
At the conclusion of Mr Pham's evidence, Mr McLaughlin indicated that he did not wish to cross-examine Mr Pham, submitting that the application should be struck out on the basis that it was misconceived or lacking in substance.
In any application to strike out a complaint, the Tribunal follows the principles set out in the Victorian Court of Appeal's decision in Rabel v State Electricity Commission [1998] 1 VR 12. The power in s75 is a power to summarily terminate a proceeding. The Tribunal is cautious before it makes such an order. The Tribunal will only make such an order where it is satisfied that the case is manifestly hopeless, untenable, doomed to fail or on no reasonable ground can justify relief. It is not enough if a respondent simply disputes an assertion made by the applicant. In the context of this strike out application, I must approach Mr Pham's complaint and application on the basis of accepting what he says, and then considering whether or not that can found any breach of either of the Acts.

According to Mr Pham, when Mr Drakopoulos inspected the premises, he told him there were no fire alarms in the garage and showed him the dangerous goods in the garage. He complains that Mr Drakopoulos left and did nothing else, but gave a permit for a rooming house without a fire alarm in the garage.
I specifically asked him why he believed Mr Drakopoulos had discriminated against him and breached the Act. Mr Pham responded saying that he believed Mr Drakopoulos should have known the law. As I understood Mr Pham's evidence, he said he did not believe Mr Drakopoulos would have violated "criminal negligence laws", the Residential Tenancies Act, and the Public Health and Wellbeing Act, unless he was discriminating against the whole household, all of whom were Asian. He said he believed it was Mr Drakopoulos' job to discriminate against him.
When I asked him what connection there was to Mr Drakopoulos' conduct and his attributes, Mr Pham said the link was "they should know the laws, their failure to do that, is an admission of guilt". He said he believed their non-action was criminal negligence.
When I asked what Mr Drakopoulos had said to him about the fire alarm in the garage, he said he could not be specific, and could not recall. He replied that "he didn't call me anything"; and he "wasn't here to deal with sticks and stones".
When specifically asked by me why he thought Mr Drakopoulos did not order a fire alarm or the removal of the dangerous goods, he said that he could "only assume it is because he was being criminally negligent, and can get away with it because he is a professional and an experienced council employee". He asserted that Mr Drakopoulos has to have grievances and he said he believed it was because of his race, and that the link therefore is the "breaching of the criminal code because no one would do that willingly".
Even accepting that Mr Pham has all the attributes claimed and that Mr Drakopoulos was engaged in one of the areas of activity claimed, I agree with Mr McLaughlin's submission that the complaints and applications against Mr Drakopoulos are misconceived and lacking in substance. Mr Pham could not recall that Mr Drakopoulos said anything to him about the fire alarm or goods in the garage. He is asking me to infer discrimination because he asserts Mr Drakopoulos has been criminally negligent and has breached various Acts, because of his race.
Even accepting that Mr Drakopoulos had been criminally negligent or had breached other Acts, Mr Pham is then asking me to infer a nexus between that and an attribute he has. His case then can only succeed if such an inference is open to be drawn. On the material and evidence he has put before me, I am satisfied that there is a complete absence of any fact, material or evidence that would support such an inference being drawn. In the absence of any such fact, material or evidence, his complaint of direct discrimination against Mr Drakopoulos is manifestly hopeless and cannot succeed. I therefore dismiss it.
As he had not previously made any complaint as defined, any victimisation complaint lacks foundation, is misconceived and is dismissed.
Mr Pham, despite every opportunity to fully present his case, advanced no evidence or material in support of his claim that Mr Drakopoulos breached s 97 of the 1995 Act or s 105 of the 2010 Act. Thus his complaint against Mr Drakopoulos of authorising or assisting discrimination cannot succeed, is misconceived and lacking in substance, and is dismissed.
Mr Pham did not advance any evidence or material, apart from asserting that the three individual respondents were "communist moles", despite being given every opportunity to do so, to support his assertion that Mr Drakopoulos had racially vilified him. Mere assertion, without pointing to some evidence to support that assertion, is not enough. Even were the assertion that he was a "communist mole" correct, without more, it is not conduct that incites hatred. I am satisfied that his complaint of racial vilification is totally lacking in substance, cannot succeed and I therefore dismiss it.
Finally, Mr Pham claims he has been indirectly discriminated against. When asked specifically what "requirement, condition or practice" had any of the respondents imposed, he responded that they "failed to act in their capacity as council employees to protect ratepayers", by failing to comply with Acts such as the Public Health and Wellbeing Act and by depriving himself and other residents of access to the Residential Tenancies Act. On reflection, he put it another way. He said that they should have known about those Acts and the condition imposed was for him and others to know laws, and as refugees, they should not have been burdened with that task.
I fail to see how the claimed failure to act in their capacity as council employees, were that the case, amounts to the imposition of any requirement, condition or practice they have imposed. Nor is any failure to comply with other legislation, even were it the case, such an imposition. Finally, his assertion that they had imposed a requirement that he and others know the law, was made totally without foundation, or even any hint of supporting evidence, despite the fact he was given every opportunity to present his case. His complaints of indirect discrimination are made on no proper basis, are misconceived and lacking in substance. I therefore dismiss his claims of indirect discrimination against all the respondents.

Mr Pham said that Mr Truong conspired with a real estate agent, did not inspect the premises and did nothing to safeguard him under council laws. He acknowledged that Mr Truong had never said anything to him. When I asked if he had written anything to him, he replied that Mr Truong had fudged a document and had written the letter (Exhibit A) tendered in evidence.
When I asked why he said Mr Truong sent the letter to him, he replied that it was because there was a conspiracy with the landlady to get an illegal eviction. When I asked if that was the only reason, he replied that Mr Truong was like an old communist trying to pervert the course of justice, who thinks he can do anything and is corrupt and is probably being paid by the landlady because nobody would lie like this landlady, who is Vietnamese as well.
I pointed out to Mr Pham during the hearing that Mr Truong did not send the letter. It was sent by John Prendergast, the Municipal Building Surveyor. The only reference in the letter to Mr Truong is that he was the person to contact for any clarification about the matters in the letter.
As I understand it, the only time Mr Pham has ever had any contact with Mr Truong has been at other hearings in VCAT.
I agree with Mr McLaughlin's submissions that the complaints against Mr Truong should be dismissed. Mr Pham's assertions about Mr Truong are made without any foundation or any evidence to support them. Even accepting they were true, there is nothing in his assertions that even hints at any link between any conduct of Mr Truong and any of Mr Pham's claimed attributes, despite Mr Pham being given every opportunity to fully present his case. His complaint or application of direct discrimination against Mr Truong is therefore totally lacking in substance and is dismissed.
As he had not previously made any complaint as defined, any victimisation complaint lacks foundation, is misconceived and is dismissed.
Mr Pham, despite every opportunity to fully present his case, advanced no evidence or material in support of his claim that Mr Truong breached s 97 of the 1995 Act or s 105 of the 2010 Act. Thus his complaint against Mr Truong of authorising or assisting discrimination cannot succeed, is misconceived and lacking in substance, and is dismissed.
Mr Pham did not advance any evidence or material, despite being given every opportunity to do so, to support his assertion that Mr Truong had racially vilified him. Mere assertion, without pointing to some evidence to support it, is not enough. What I have already said about assertions he is a "communist mole" apply here too. I am satisfied that his complaint of racial vilification is totally lacking in substance, cannot succeed and I therefore dismiss it.
I have already dismissed the claim of indirect discrimination against Mr Truong.

Mr Pham said his complaint against Mr Hansen was "his non-compliance with his duty of care". He conceded he had never had any contact with him, and that Mr Hansen had never written nor spoken to him.
When I asked him then what Mr Hansen had done to him, he responded that it was not what he had done, but what he had not done, as the one in charge. He said that Mr Hansen was liable for the actions of council employees and had authorised the actions of Mr Truong and Mr Drakopoulos in proceedings in the Residential Tenancies List. He asserted Mr Hansen perverting his own laws and council laws shows he has hatred.
Again, Mr Pham has made a number of assertions that are unsupported by any supporting evidence or material. Even were there breaches of laws or failures to act, as Mr Pham asserts, there is nothing in his assertions that points to any link between any such alleged actions or inactions and Mr Pham's attributes to found a breach of either Act. I agree with Mr McLaughlin's submissions, the thrust of which is that Mr Pham's claims of direct discrimination against Mr Hansen are simply not made out, are misconceived and I dismiss them.
Mr Pham claims that Mr Hansen has authorised Mr Truong's and Mr Drakopoulos' actions. His claim is based entirely on assertion and is not supported by any evidence, despite Mr Pham being given every opportunity to present his case. Even accepting that Mr Hansen did authorise their actions, as I have found those actions did not disclose any breaches of either Act, his complaint or application against Mr Hansen for a breach of either s97 or s105 respectively, cannot succeed and is dismissed.
As he had not previously made any complaint as defined, any victimisation complaint lacks foundation, is misconceived and is dismissed.
Mr Pham did not advance any evidence or material, despite being given every opportunity to do so, to support his assertion that Mr Hansen had racially vilified him. Mere assertion, without pointing to some evidence to support that, is not enough. What I have already said about his assertion he is a "communist mole" apply here too. I am satisfied that his complaint of racial vilification is totally lacking in substance, cannot succeed and I therefore dismiss it.
I have already dismissed the claim of indirect discrimination against Mr Hansen.

Given the findings I have made, I dismiss all of Mr Pham's applications and complaints against the respondents.

[1] "area of activity" see part 3 of the 1995 Act. E.g. s 42 prohibits discrimination in the provision of goods and services, where "services" is defined in s 5. See Part 4 of the 2010 Act. E.g. s 44 prohibits discrimination in the provision of goods and services, where "services" is defined in s 4.

[4] See s 8(2) if both Acts

[5] Defined in s 9 in the respective Acts

Pham v Drakopoulos & Ors

At a glance

Court

Decision date

Source

Judgment (36 paragraphs)

Pham v Drakopoulos & Ors (Anti-Discrimination) [2012] VCAT 1198 (10 August 2012)

Parties