Under section 75(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998 the complaint is dismissed.

1. Ms Ryder has made a complaint of discrimination based on race against Money3 Corporation Ltd (Money3). Ms Ryder says that, in around December 2010, staff of Money3 treated her rudely when she attended its offices in Bendigo to apply for a small loan. Ms Ryder complains that the treatment was due to her being Aboriginal. Money3 approved a loan for a lesser amount than Ms Ryder applied for and she accepted that. The complaint made does not concern the amount offered as a loan but rather what Ms Ryder saw as disrespectful and discriminatory treatment which she believes was contrary to the Equal Opportunity Act 1995 (the EO Act).

1. No witness statements were ordered to be filed with the Tribunal. Rather directions were made that at the hearing Ms Ryder was to present all the evidence and material on which she intended to rely and Money3 then had the option to present its own evidence, seek an adjournment to prepare its case or apply for an order dismissing the complaint.

1. At the hearing on 12 October 2011, Ms Ryder gave evidence and was cross examined about that evidence. Her friend, Ms McPherson, also gave brief evidence about a phone call she had with Ms Ryder. Ms Ryder confirmed that she had no other evidence to call or produce to the Tribunal.

1. Money3's representative, Mr Nicholson, applied for an order dismissing the complaint on the basis that it was without substance. I have decided that such an order ought to be made for the reasons that follow.

1. Ms Ryder says that she was treated rudely and disrespectfully by Money3 staff in its Bendigo branch. In her original complaint to the Victorian Equal Opportunity & Human Rights Commission and in her evidence before the Tribunal, Ms Ryder described the events leading to the complaint in the following way.

1. Ms Ryder wished to borrow funds to buy Christmas presents for her children. She saw an advertisement on the television for Money3 and telephoned the Bendigo branch. She told the person who answered that she wanted to apply for a loan. The staff member was friendly towards her and told her to come in and apply. Ms Ryder asked what documents, such as bank statements and Centrelink information, she should bring and the staff member told her to just come in with an income statement and a bank statement and they would see what they could do.

1. Ms Ryder attended the Bendigo branch. She said that there were some other customers there when she arrived but that they left soon after. Ms Ryder approached the desk and spoke with a staff member. As Ms Ryder did not know the names of the staff members, she referred to them by reference to their hair colour or position. She spoke with a woman with black hair, gave her name and said she had called earlier. Another staff member with blonde hair was standing beside the black haired woman. As Ms Ryder spoke to the black haired woman, that woman was looking at the blonde woman and leaning towards her. Ms Ryder said that, when she was speaking, the staff member did not look her in the eye.

1. Ms Ryder said that the black haired woman leaned down and towards the blonde woman without looking at her while some forms were retrieved. Ms Ryder was then given the forms to fill in to apply for the loan. She told the women that she could not read or write well and that her spelling was not too good. She asked for help to fill in the forms. Ms Ryder says that the two women looked at each other and her. One of them filled out part of the form. Ms Ryder took the forms and completed them as best she could. She told the Tribunal that she could read the forms and write in the most of the required information but that she had trouble with some of the bigger words.

1. Ms Ryder said that the two women were acting "funny". She said that they were leaning in towards each other and whispering. When she was at the desk speaking with them, they did not look directly at her. Ms Ryder was upset by this conduct and the women's body language.

1. She returned the completed forms and was told that she would be called later that day to be told whether the loan had been approved.

1. Ms Ryder went home feeling upset at how she had been treated. She called the Bendigo branch. Ms Ryder said that she asked for the manager. The staff member said that she was next in charge and that Ms Ryder could speak to her. Ms Ryder said that she wanted to speak to the manager. The staff member then said "Tell me who this is?" Ms Ryder hung up.

1. Later that day Ms Ryder was called and told that her application had been approved and that Money3 would loan her $50.00.

1. The next day Ms Ryder went into the branch to collect the funds. She was attended to by the blonde woman. Ms Ryder said words to the effect that they (the staff at the branch) acted so nice over the telephone but that they changed their tune when she came into the branch. In the written complaint to the Commission Ms Ryder noted that the women asked what she meant and said they did not understand. I asked Ms Ryder whether she told them about her belief that the women had been racist or that they had treated her poorly because she was Aboriginal. She said no and that she had just referred to them being dumb and told them not to play dumb with her.

1. Ms Ryder asked to speak to the manager. Ms Ryder told the manager that the women had been rude to her. The manager said words to the effect that her staff were not like that. Ms Ryder told the Tribunal that she wanted to speak to the manager away from the other women but that they were present near the manager and they then moved away towards the back and continued whispering to each other. The manager then asked Ms Ryder if she wanted to be included in a draw to win a Christmas hamper and the other women came forward and gave her a stubby holder and a key ring. The loan funds were provided to Ms Ryder.

1. Ms Ryder explained that she was offended when she was entered in the Christmas hamper draw and given the stubby holder and key ring because she felt the women had been rude to her before and now were acting nicely.

1. When she got home Ms Ryder called Ms McPherson in an upset state, crying. She told Ms McPherson about what had happened and told her that she had told the women off. Mr Ryder said that Ms McPherson responded saying that it was good that Ms Ryder had stood up for herself and that she had not got angry. Ms Ryder asked what she could do and Ms McPherson told her about making a complaint.

1. In her evidence Ms McPherson confirmed that Ms Ryder had telephoned and told her about these events. She confirmed that Ms Ryder was crying and extremely upset. Ms Ryder told her friend that she felt like a "rubbish person" and talked about people not treating her with respect. She told Ms McPherson that she was not going to take this. Ms McPherson warned Ms Ryder that the complaint process could be "horrible". Ms Ryder was adamant she wanted to take the matter further and she asked for Ms McPherson's help. Ms McPherson told the Tribunal that she was reluctant about this due to her own commitments and busyness but that she believed what Ms Ryder had told her had occurred. Ms McPherson said that she had 25 years experience with Aboriginal people, that she had seen Aboriginal people treated differently to her when she was with them and she knew that Aboriginal people have a highly developed capacity to read body language.

1. When asked why she thought that she was being treated in this way because she was Aboriginal, Ms Ryder indicated that she just knew that to be the case because of the way the women were behaving, including not looking directly at her and looking at and leaning towards each other, and because of her past experience of how she had been treated.

1. As to the other people in the branch when she first arrived, Ms Ryder said that there were some white people there but that they left quickly. She did not hear the staff speaking to the other people. She referred to another Aboriginal woman coming into the branch and quickly filling out forms and then leaving.

1. Later in the hearing, Ms Ryder gave further evidence about her understanding of what had occurred. Ms Ryder confirmed that she had experienced different treatment many times in her life and that she knew it was because she is Aboriginal and she could tell by the body language of those people that was why they treated her as they did.

1. She then referred further to the other people in the branch when she arrived. She said that when she walked in the staff were talking to the other people and that one man went out and came back in saying he was happy because his loan had been approved. She said that it was all very quick but that when she went to the desk they acted differently towards her. Ms Ryder was asked why that evidence had not been given earlier, particularly when she had been asked directly about the other people and whether she had heard any discussions with them and the staff. Ms Ryder said that she had not remembered all that had happened and that it had come back to her.

1. Mr Nicholson's primary submission was that there was no evidence produced by Ms Ryder which would show the necessary nexus between the treatment being complained of and the attribute in issue. He referred the Tribunal to the decision of the High Court of Australia in Purvis v New South Wales (Department of Education and Training)[1] in which the Court found that the central question in cases of discrimination is why the aggrieved person was treated as she was: if that person was treated less favourably than others, was it because of or by reason of the relevant attribute? The causal nexus between Ms Ryder's race and the complained of treatment must be proven.

1. Mr Nicholson argued that the fact that Ms Ryder believed that the attribute of her race was the cause of the treatment was not enough: there had to be some factual basis to support a conclusion that the treatment was on the basis of her race. If the case were to proceed on the available evidence that would amount to requiring Money3 to prove that Ms Ryder's belief about what had happened was to do with her race was incorrect.

1. Mr Nicholson characterised the complaint as being concerned with poor service and referred to the three areas which appeared to be of concern: firstly the women staff talking to each other in the course of providing service to Ms Ryder; secondly Ms Ryder's need for assistance with the forms and the extent that was provided; and thirdly the way her complaint was made and dealt with by the manager.

1. Mr Nicholson's position was that there was nothing in Ms Ryder's evidence which showed a nexus between any of these matters and Ms Ryder's race.

1. He noted that, even if the staff only provided limited assistance to Ms Ryder to complete the loan application form, Ms Ryder had confirmed that it had been completed by her and the fact that the loan was advanced showed that the information provided was sufficient for it to be processed. He also noted that, on Ms Ryder's evidence, even though the branch manager did not agree with Ms Ryder that her staff had been rude or acted inappropriately, steps were taken to show that Money3 was sorry and that was done by entering Ms Ryder into the Christmas hamper draw and giving her the stubby holder and key ring.

1. Mr Nicholson queried whether the treatment described by Ms Ryder could amount to less favourable treatment of the kind for which the EO Act provides a remedy. He accepted, though, that the humiliation and upset described may be sufficient and did not suggest that, what he described as poor service, could never amount to less favourable treatment under that Act.

1. Section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) gives the Tribunal power, at any time, to make an order summarily dismissing or striking out all or any part of a proceeding that is in the Tribunal's opinion, amongst other things, lacking in substance.

1. In any application to dismiss or 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.[2]. The power in section 75 is a power to summarily terminate a proceeding. The Tribunal is cautious before it makes such an order which deprives the complainant of a chance for their case to be heard. The Tribunal will only make such an order where it is satisfied that the case is manifestly hopeless, untenable, doomed to fail, discloses no reasonable cause of action or on no reasonable ground can justify relief.

1. In order for Ms Ryder to succeed in a complaint of direct discrimination, she must prove, on the balance of probabilities, that she was treated less favourably than another person in the same or similar circumstances without the relevant attribute and that a substantial reason for the less favourable treatment was because of that attribute. It is not necessary for the complainant to show that the attribute was the sole reason for the less favourable treatment but it must have been a substantial reason.[3]

1. There was nothing in the evidence to suggest that the complaint could be characterised as a complaint of indirect discrimination, that is that Ms Ryder had been required to comply with a requirement, condition or practice which, due to her race, she was less capable of complying with as compared to non-Aboriginal people in the same position.[4]

1. In considering whether it is appropriate to summarily dismiss the application, I have proceeded on the basis that the evidence of Ms Ryder as to what was said by her and the Money3 staff and the actions of those staff is correct. I accept that she has experienced discrimination in the past due to her race and that she believes she can identify when people react negatively or differently towards her due to her race. I accept that she may not have recalled everything about what was occurring in the branch when she arrived until the latter part of the hearing: Ms Ryder was not legally represented, no witness statement had been made by her and giving evidence and being questioned about that evidence is an inherently stressful experience for anyone.

1. As noted earlier, the burden of proving that there has been a breach of the EO Act falls on Ms Ryder. The standard of proof is on the balance of probabilities. What is required is for the Tribunal to be satisfied that overall it is more probable than not that the events occurred as described and that the inferences sought to be drawn can reasonably be drawn from the facts as they have been found.

1. Given that Ms Ryder was unrepresented, some of the hearing time was spent discussing the application Money3 had made and the legal tests which apply. Ms Ryder commented on aspects of these matters. Ms Ryder was asked whether she had any further evidence to call. She did not.

1. In cases of discrimination the person engaging in that conduct does not usually announce the fact. It is often necessary for an inference to be drawn from the evidence presented that the reason for the less favourable treatment is the relevant attribute, in this case race.

1. While understanding that Ms Ryder believes that the explanation for Money3's staff behaving in the way she describes is her race, there is nothing in the evidence she has presented which shows that to be more likely than not correct. While the attribute of race does not have to be the only reason for the behaviour, where summary dismissal is sought there must be some basis for me to consider that it is a likely reason for the behaviour. Ms Ryder and Ms McPherson's own experiences of different treatment due to race, over a long period, and their joint belief that Aboriginal people can tell by body language when others are reacting to them because of their race is not enough to point to that being a likely explanation here. Expert evidence would be required to that effect and Ms Ryder did not say she wished to call any such evidence.

1. The difficulty for the complainant is that there is nothing in the material before me to point to the reason relating to her race other than her own belief. It may be that the staff were rude because they were unwell or grumpy or unhappy or because they behaved like that with everyone.

1. It is relevant in my view to take into account the fact that the Money3 staff did offer some assistance to complete the application form and it was able to be processed as completed by Ms Ryder and approved. While those matters do not rule out as unlikely that staff might have treated Ms Ryder disrespectfully, they indicate that Ms Ryder's race did not limit her ability to apply for or be approved for a loan.

1. Since Ms Ryder and Ms McPherson gave all of their evidence and Ms Ryder informed the Tribunal that there was none more she wished to call, I am satisfied that there was before me all of the evidence that could be adduced to prove Ms Ryder's complaint. Taking that evidence at its highest, the material before the Tribunal does not support the drawing of the inference required to prove the complaint. The suspicion that discrimination was behind the staff's behaviour, even if strongly held, is not enough. Ms Ryder must be able to prove her case on the balance of probabilities and I am not satisfied that she has done so.

1. In these circumstances I dismiss the complaint under section 75(1)(a) of the VCAT Act as lacking in substance.

[1] [2003] HCA 62; (2003) 217 CLR 92 at 163

[2] [1998] 1 VR 12

[3] See sections 7 and 8 of the EO Act which define discrimination and direct discrimination

[4] See section 9 of the EO Act which defines indirect discrimination