Abdulla v Berkeley on Hindley Street P/L - [2005] SAEOT 2

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
ABDULLA v BERKELEY ON HINDLEY STREET P/L
Decision of His Honour Judge Millsteed, Member Bachmann and Member Altman
22 December 2005
DISCRIMINATION LAW - STATE PROVISIONS - SOUTH AUSTRALIA - DISCRIMINATION ON OTHER GROUNDS
An Aboriginal complainant asserted that he was refused entry into the respondent's hotel on the ground of his race contrary to s 61 of the Equal Opportunity Act 1984 - whether complaint was a fabrication and if not whether respondent vicariously liable for employee's conduct pursuant to s 90(1) - whether respondent had exercised "all reasonable diligence" to ensure that employee did not contravene the Act.
Complaint upheld. Damages awarded against respondent for injury to feelings.
Equal Opportunity Act 1984 s 51, 61, 91, 95, 96, referred to.
Clark v Ryan (1960) 103 CLR 486; R v Deputy Industrial Injuries Commissioner ex parte Moore [1965] 1 QB 456; A and B v Director of Family Services (1996) 132 FLR 172; Jones v Dunkel (1959) 101 CLR 298; Minister for Immigration & Ethnic Affairs v Arslan (1984) 4 FCR 73; Evans v Lee [1996] EOC 92-822; Bevacqua v Klinkert [1993] EOC 92-576, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Reasonable diligence"

ABDULLA v BERKELEY ON HINDLEY STREET P/L
[2005] SAEOT 2
INTRODUCTION

The complainant Mr Benjamin Abdulla is an Aboriginal. The respondent trades as the Princes Berkeley Hotel (the “Berkeley Hotel”) in Hindley Street, Adelaide.
The complaint is that on 31 December 2002 the respondent discriminated against the complainant in the provision of goods and services on the ground of his race contrary to the provisions of the Equal Opportunity Act 1984 (“the Act”).[1] The particulars of the complaint allege that a security guard employed by the respondent refused to allow Mr Abdulla to enter the Berkeley Hotel saying that he had been instructed by management not to admit any more Aboriginals. The complainant contends that the respondent is vicariously liable for the security guard’s conduct because he was acting in the course of his employment.[2] The complainant seeks relief by way of compensation for injured feelings.[3]
[1] Section 51 and s 61 of the Act
[2] Section 91(1) of the Act
[3] Section 96(1)(a) of the Act
The respondent denies that a security guard employed by the respondent refused the complainant entry into the Berkeley Hotel on the ground of his race. The respondent contends that the allegations are a fabrication. In the alternative the respondent argues that if such an act had been committed by an employee, acting in the course of his employment, the respondent is not liable because it had exercised all reasonable diligence to ensure that employees would not act in contravention of the Act.[4]
[4] Section 91(3) of the Act
The complaint was lodged with the Commissioner for Equal Opportunity on 2 January 2003. The Commissioner attempted to resolve the matter by conciliation, but was unsuccessful and referred the complaint to the Tribunal for hearing and determination.[5] The complainant was represented by Ms T. Scott of the Crown Solicitor’s Office. The respondent was represented by Mr A. Perry.
THE COMPLAINANT’S CASE
Complainant’s evidence
[5] Section 95(8)(b) of the Act
Background
The complainant is 61 years old and has four children. He is an Elder in the Aboriginal community. In 1981 he gave up drinking alcohol. For the next twenty years he worked as a drug and alcohol counsellor with various organisations including the Adelaide Central Mission, the Aboriginal Sobriety Group and the Department of Correctional Services. He does not enjoy good health and currently receives a disability pension.
31 December 2002
Events preceding incident
At about 7pm on 31 December 2002 Mr Abdulla went into Hindley Street in the city to celebrate New Year’s Eve. He hoped to catch up with friends and members of his family. He initially attended the “X Hotel”, the correct name of which has been suppressed from publication.[6] Mr Abdulla saw two of his nephews in the hotel. They told him that his son had been at the hotel and would be returning later that evening.
[6] The reasons for supression are discussed at [23]
Mr Abdulla played on the hotel’s poker machines until about 8pm. He then walked to the Berkeley Hotel, which was situated on the northern side of Hindley Street, a short distance west of the intersection of Bank and Hindley Streets. There were three entrances to the hotel in Hindley Street, each of which consisted of a set of double glass doors. The western entrance provided access to the front bar and gaming room. The central and eastern entrances provided access to stairs that led to a nightclub on the first floor. However, there is conflict in the evidence as to whether the eastern doors were open on 31 December 2002.
Upon reaching the Berkeley Hotel, Mr Abdulla saw a security guard sitting on a stool outside the hotel by the eastern doors. The eastern doors were open. The western and central doors were closed. Mr Abdulla looked into the hotel through the eastern doors, but did not see anyone he knew.
Mr Abdulla then returned to the X Hotel. He was stopped from re-entering the hotel by a security guard at the front door who said that he was intoxicated. The guard also said that he smelt and that his clothes were dirty. Mr Abdulla was upset by the guard’s remarks. He had not been drinking and he was clean and tidily dressed in black boots, black trousers, a polo neck jumper and an Adidas jacket. Mr Abdulla exchanged words with the guard and then walked away. He then approached three police officers walking along Hindley Street and reported the incident to them. They laughed and suggested that he “get dressed in a happier mode.”
The incident
At about 8.45 pm Mr Abdulla returned to the Berkeley Hotel. The security guard whom he had earlier seen was still sitting on a stool outside the hotel in the vicinity of the eastern entrance. Mr Abdulla approached the guard and asked if he could enter the hotel to purchase a soft drink. The guard said “No” and added that management had told him not to allow any more Aboriginal people into the hotel.
Mr Abdulla then approached a police officer standing nearby. He asked the officer if he had heard what the guard had said to him. The officer replied in the affirmative. Mr Abdulla then asked the officer if he would do something about it. The officer said that he was too busy and walked away.
Mr Abdulla gave the following description of the security guard about 6’ tall, clean-shaven with oily pushed back reddish, gingery, sandy hair. Mr Abdulla said that he was a “big fellow” who “looked like a version of Steve Condous (the former Lord Mayor.)” However, in cross-examination he remarked that the guard had a medium build and would have weighed about 85-90 kgs. Mr Abdulla observed that the guard was wearing black trousers, a white shirt and a black tie. A circular badge, slightly larger than a 50 cent coin, was attached to the guard’s shirt. The badge had a number on it. Mr Abdulla could not read the number due to his poor eyesight and light reflecting off the badge.
Complaint to Mr John Clark
Mr Abdulla testified that an Aboriginal friend, named John Clark, came out of the hotel a short while later. This was the first time that he had seen Mr Clark that night. Mr Clark approached Mr Abdulla and asked him if he was going inside. Mr Abdulla replied “No” and explained that the security guard had told him that no more Aboriginals were to be allowed into the hotel.
Mr Clark then questioned the security guard in the presence of Mr Abdulla. The guard reiterated what he had told Mr Abdulla. Mr Clark then said “What are you talking about I just came out of there?” The guard said “No that’s what management said”. Mr Clark said “Will you be willing to stand up in a court of law and say what you are saying?” The guard replied “Yes.”
Mr Abdulla deposed that his niece, Patricia Carter, and a male companion then came out of the hotel. Mr Abdulla told her what had happened. She became upset and began to abuse the guard. Mr Abdulla told her to stop because he was concerned that she might get arrested. Ms Carter and her companion then left. They were both drunk. Mr Abdulla testified that he believed the name of his niece’s companion to be Spencer Sumner.
Complaint to Kumangka workers
Mr Abdulla testified that he and Mr Clark decided to ring the Aboriginal Legal Rights Movement (ALRM) and report the incidents. They walked to a telephone booth on the southern side of Hindley Street, a short distance east of the Berkeley Hotel, but the telephone was out of order.
While they were standing by the telephone booth they met three Kumangka[7] youth workers walking along Hindley Street. Mr Abdulla knew them. They were Deidre Richardson, Margaret Jackson and Raymond Agius. They noticed that he was upset and enquired what was wrong. He told them about the incidents at the Berkeley Hotel and the X Hotel. He explained that he wanted to ring ALRM but the phone was not working. They suggested that he use a public telephone at the Adelaide Railway Station.
[7] Kumangka is a government funded organisation which provides couselling and assistance to young Aboriginal people and street kids
Mr Abdulla and Mr Clarke then went to the station where Mr Clark rang ALRM. An appointment was made for Mr Abdulla and Mr Clark to attend the office of ALRM on 2 January 2003. The two men then separated.
Later events
Mr Abdulla returned to Hindley Street where he spent time walking around the area. At about 10.15pm he again met up with the three Kumangka youth workers. They indicated that they wanted to attend the Berkeley Hotel to determine if the hotel was discriminating against Aboriginal persons. Mr Abdulla told them that he did not want to return to the hotel. They then suggested attending the X Hotel to ascertain if people were being refused entry into that hotel on racial grounds. Mr Abdulla decided to accompany them, primarily because he wanted to see if his son had returned to the hotel.
Mr Abdulla then accompanied the youth workers to the X Hotel. There was little questioning of Mr Abdulla in relation to the events that took place upon his return to the X hotel. In essence he said that he and the youth workers stood outside the premises and observed a security guard prevent an Aboriginal man from entering the hotel. Mr Abdulla said that he also looked through a window to see if his son was inside the hotel. He could not see him and subsequently parted company with the youth workers. He later caught a taxi home.
Complaint to Commissioner
On 2 January 2003 Mr Abdulla attended the office of ALRM and complained to a field worker about the incident at the Berkeley Hotel. He was informed that the matter could not be considered until ALRM lawyers returned from holidays. He was reluctant to wait. He then attended the Office of the Commissioner for Equal Opportunity and filed a written complaint in relation to the incidents at the X Hotel and the Berkeley Hotel. He saw Mr John Clark leaving the office while he was waiting to see a field worker.
The details of Mr Abdulla’s complaint are substantially consistent with his evidence. In his complaint[8] he stated:
1. [X] Hotel.
I was at the [X] playing the Pokies on New Years Eve (31 December) I left and went into the Bar to speak with my two nephews. I then left and walked up the street and returned about ½ hour later (between about 7.30-8pm). When I got back there was a Security guard at the door. He wouldn’t let me in and said I wasn’t dressed properly. I was wearing black pants and sox (sic) and black shoes and had a dark green jumper on. I had previously been in there with no problems. When I was talking to the Security guard other non-Aboriginal patrons were entering the hotel. I don’t smoke or drink so I wasn’t intoxicated. I was polite to begin with but was angry when he wouldn’t let me in and abused him as I walked off because I was angry at being discriminated against. I walked across the road and complained to three policemen and they suggested I had to be dressed in a happy mood.
2. I then went to the Berkley (sic) Hotel.
There was a security chap at the door. He told me that Management said not to let any more Aboriginal people in the establishment. While I was talking to him John Clarke (sic) (who is Aboriginal) came out and said whats (sic) the matter. – I told him they wouldnt (sic) let me in because the management said that no more Aboriginal people can go in. John suggested we ring Aboriginal Legal Rights. On the way I approached a police officer who was walking down the street and he told me that they can’t say that. I asked him to come over and help me but he wouldnt (sic) and just kept walking. They also wouldnt (sic) let the lady from Kumanka (sic) Youth Team in either. She told me they wouldnt (sic) let her in, or her partner.
[8] Exhibit R9
The Commissioner subsequently attempted to resolve both complaints by conciliation. As earlier stated, the attempt to resolve the complaint against the Berkeley Hotel was unsuccessful and the Commissioner referred the matter to the Tribunal for hearing and determination. However, conciliation was successful in relation to the complaint against the X Hotel. On 3 March 2003, Mr Abdulla and the X Hotel entered into an agreement to resolve the complaint. The terms of the agreement cannot be disclosed by virtue of s 95(7) of the Act.
At the hearing before the Tribunal, the proprietor of the X Hotel made an application, pursuant to s 69A of the Evidence Act 1929, for an order suppressing publication of the name of the hotel and any evidence that might tend to identify it. We were satisfied that it was necessary to grant the application to prevent prejudice to the proper administration of justice. In our view publication of the identities of parties who have successfully conciliated may serve to discourage other disputants from engaging in the process of conciliation.
John Clark’s evidence
Mr Clark was called by the complainant. He is of Aboriginal descent and has known Mr Abdulla since he was a teenager. He said that Mr Abdulla had not consumed alcohol for about 20 years. There were some differences between Mr Clark’s account and that of Mr Abdulla but in the main he corroborated the complainant’s allegations as to the circumstances in which he was refused entry into the Berkeley Hotel.
Mr Clark testified that he went into the city to celebrate New Year’s Eve. At about 9pm he met Mr Abdulla by chance in Hindley Street. At the time they were both walking in an easterly direction towards the Berkeley Hotel. Mr Abdulla was tidily dressed in a jacket, black trousers and shoes. Upon reaching the hotel Mr Clark entered the front bar through the western doors to see if any of his friends were inside. He left Mr Abdulla outside and assumed that he had continued walking down Hindley Street.
Mr Clark had a look around inside the hotel but did not see anyone he knew. He then left the hotel and saw Mr Abdulla speaking to a security guard in front of the central doors to the nightclub. Contrary to Mr Abdulla’s evidence Mr Clark observed that the central doors were open, but the eastern doors were closed. The guard was standing on the footpath and there was no stool in his vicinity. Mr Clark said that he had not seen the guard when he entered the hotel and surmised that the guard may not have seen him because he had been distracted by Mr Abdulla. Mr Clark observed that the guard was tall and heavily built and had short “blondish” hair. He was wearing a white shirt, black pants and a security badge with a number on it.
Mr Clark approached Mr Abdulla and asked him what was going on. Mr Abdulla informed him that “[they] were not letting blackfellas into the upstairs disco”. Mr Clark then approached the guard and said “Is that true my mate reckons that they’re not letting blackfellas in here.” The guard replied “Yes that’s right”. Mr Clark then asked “Are you sure, you’re not letting blackfellas in?” The guard replied “Yes”. Mr Clark then asked whether the guard would swear to that in court. He said that he would. The guard then remarked that he was part-Aboriginal and that he was from interstate. Mr Clark said “Okay then, no worries son” and then suggested to Mr Abdulla that they ring ALRM. During cross-examination Mr Clark added that he specifically asked the guard whether the manager had said that no more “blackfellas” were to be allowed inside the hotel and that the guard replied “Yes”.
Mr Clark said that while he was outside the Berkeley Hotel he never saw Mr Abdulla’s niece or any other female person have an argument with the guard. Nor did he see any police officer in the vicinity.
Mr Clark then went with Mr Abdulla to a telephone booth in Hindley Street opposite the McDonald’s restaurant. However, the telephone was not working. A short while later, while they were still in the vicinity of the telephone booth, they met up with two Kumangka workers (male and female). Mr Clark could not remember the details of their conversations with the youth workers.
Mr Clark and Mr Abdulla then went to the Adelaide Railway Station where Mr Clark rang ALRM. Following the telephone call they parted company.
Mr John Clark also filed a complaint with the Commissioner for Equal Opportunity on 2 January 2003 in relation to the incident at the Berkeley Hotel. In his complaint[9] he stated:
On the morning of 1/1/03 approx 1-00am – 1-15am I walked into the Hotel in question to see if any of my friend (sic) were there to wish them a Happy New Year. So I walked in throught (sic) the front bar to the Pokie (sic) Room the turne (sic) around and exited the hotel., and (sic) At the entrance of the hotel on the footpath I came across a friend Mr Benny Adbella (sic) who told me that the management of the hotel told security not too (sic) admit Aboriginal people too (sic) the upstairs disco so I approached the security person at the door of the upstairs disco and I asked him if it ws (sic) true and he replyed (sic) yes he was told not too (sic) admit Aboriginal people, I then asked him if he was asked too (sic) to go to court over the managements (sic) orders. He said that he would do this willingly. Unfortunately I didnt get his name and details but Mr Abdellah (sic) got his number. Because of being Aboriginal I was refused.
[9] Exhibit R2
There were several inconsistencies between Mr Clark’s written complaint and his testimony. In particular, he gave evidence that his conversation with the security guard happened at about 9pm and not 1.00am-1.15am. In cross-examination Mr Clark said that when he lodged his complaint he was confused about the time when the incident occurred, but claimed that he could remember looking at his watch and noticing that the time was about 9pm.
He also gave evidence that he met Mr Abdulla on the way to the Berkeley Hotel, while his written complaint (consistent with Mr Abdulla’s evidence) states that he “came across” Mr Abdulla after he left the hotel. He also testified that Mr Abdulla complained that “blackfellas” were not being allowed into the disco while his complaint (consistent with Mr Abdulla’s evidence) states that Mr Abdulla referred to “Aboriginal people” not being permitted entry.
Evidence of the Kumangka workers
The complainant called Ms Deidre Richardson and Ms Margaret Jackson who are senior youth workers with Kumangka. Both witnesses are of Aboriginal descent. They have known Mr Abdulla for several years through his work with welfare organizations. They confirmed that he did not drink alcohol.

They testified that they met Mr Abdulla on 31 December 2002 while they were walking along Hindley Street with fellow youth worker Mr Raymond Agius. They both said that he appeared upset and complained that he had been denied entry into the Berkeley Hotel. However, there were some differences in their evidence as to the location of the meeting and the terms of Mr Abdulla’s complaint.
Ms Jackson stated that they crossed paths with Mr Abdulla in the vicinity of the telephone booth in Hindley Street. She believed that he was in the company of another person at the time but admitted that she was unsure. She testified they met Mr Abdulla at about 7.15pm - 7.30pm, but in cross-examination agreed that she had previously stated, in a letter written to ALRM dated 22 January 2003,[10] that the meeting occurred at approximately 9.30pm. Ms Richardson testified that they met Mr Abdulla at about 8.30pm. He was with another man but she did not think that his companion was of Aboriginal descent. She believed that the meeting occurred west of the public telephone box in the vicinity of the Greater Union Cinema complex. However, in cross-examination she accepted that she might have been mistaken about the location of the meeting.
[10] Exhibit R5A
As we have just pointed out, neither witness claimed to have seen Mr Abdulla in the company of an Aboriginal man, but gave rather vague evidence that he was or may have been in the company of someone else. We accept the evidence of both Mr Abdulla and Mr Clark that they were together when Mr Abdulla first spoke to the Kumangka workers in Hindley Street.
The Kumangka workers both deposed that Mr Abdulla told them that he had been refused entry into the Berkeley Hotel on the grounds that he was an Aboriginal and intoxicated. According to Ms Jackson, Mr Abdulla also complained that he had been told that he was not dressed “happy enough.” Ms Jackson further stated that Mr Abdulla complained that he had been prevented from entering the X Hotel that night on the ground of alleged intoxication. Ms Richardson recalled that he mentioned attending the X Hotel, but believed that he did not make any complaint about the way he had been treated at the X Hotel until they met again later that evening. Both witnesses stated that Mr Abdulla was sober and appropriately dressed for admission into both hotels.
Ms Jackson said that Mr Abdulla then crossed Hindley Street and spoke to three police officers. He then returned and accused the police of making fun of him. After further conversation, he left saying that he was going to ring ALRM. It is to be observed that this aspect of Ms Jackson’s account is inconsistent with that of Mr Abdulla. On his account he spoke to three police officers in Hindley Street after the incident at the X Hotel. Following the incident at the Berkeley Hotel he spoke to another police officer but that happened before he met up with Ms Jackson and the others. We believe that Ms Jackson may be mistaken about seeing the complainant speak to three police officers. Her account is inconsistent not only with Mr Abdulla but also her colleague Ms Richardson and Mr John Clark. We believe that its possible that Mr Abdulla told her that he had spoken to three police officers after he left the X Hotel and that Ms Jackson now believes that she in fact witnessed the incident.
According to Ms Jackson she then attended the Hindley Street Police Station with the other youth workers and complained to the desk sergeant about the manner in which Mr Abdulla had been treated at the hotel. The sergeant thanked her but did not note her complaint. Ms Jackson then left the station with her colleagues. Ms Richardson was not questioned about whether she saw Mr Abdulla speak to the police in Hindley Street or whether she subsequently attended the police station in company with the other youth workers.
Both youth workers testified that they met Mr Abdulla again, about one hour later, as they were walking east along Hindley Street i.e. in the general direction of the X Hotel. Ms Jackson said that they met a short distance west of the Berkeley Hotel near the corner of Hindley and Victoria Streets. At the time Mr Abdulla was heading in the opposite direction. She said that he spoke to them further about the incidents at the Berkeley Hotel and the X Hotel and mentioned that he had telephoned ALRM. Ms Jackson then suggested that they attend the X Hotel to see if they were discriminating against Aboriginal people. Mr Abdulla accompanied them.
Ms Richardson said they met Mr Abdulla in Hindley Street somewhere between Bank Street and Morphett Street. On her account, the meeting could have happened west or east of the Berkeley Hotel. Mr Abdulla approached them and said that he had telephoned ALRM. He said that he really felt down about the way he had been treated at the Berkeley Hotel. Ms Richardson said that it was during this second meeting that he disclosed that he had been refused entry into the X Hotel as well. She could not recall any discussions about attending the X Hotel for the purpose of determining whether Aboriginal persons were being discriminated against, but acknowledged that one of the other workers may have suggested going there for that purpose. As far as she could recall, they walked to the X Hotel because they were heading in that direction to attend a skate park.
We find that the Kumangka workers proceeded to the X Hotel to investigate Mr Abdulla’s allegations because they were heading in that direction and that Mr Abdulla accompanied them primarily to see if his son had returned to the hotel.
Ms Jackson and Ms Richardson said that upon reaching the X hotel they stood outside and watched a security guard stop a young Aboriginal man from entering the premises though he appeared sober and well dressed. By contrast some white patrons who were not as well dressed were allowed to enter. Ms Richardson said that while they were standing outside she saw Mr Abdulla peering into the hotel through the front window, consistent with Mr Abdulla’s account that he was hoping to locate his son.
Ms Jackson said that she attempted to enter the hotel but was stopped by the doorman. She complained to the guard that she regularly went into the hotel. He replied “not tonight” and suggested that she was dressed too casually. Ms Jackson said that at the time she was wearing neat clean clothes including a grey shirt which had Kumangka Youth Service printed on the front. Ms Richardson gave a similar account but added that she also spoke to the security guard. She asked him why he was stopping people from entering the hotel and he indicated that it was on the ground that they were not sufficiently well dressed. Ms Richardson then asked him whether Mr Abdulla was adequately dressed but he declined to comment.
Ms Jackson and Ms Richardson then continued their youth worker duties and parted company with Mr Abdulla a short while later.
Ms Jackson and Ms Richardson further testified that on “special occasions,” such as the Clipsal 500 and New Year’s Eve, they had witnessed Hindley Street hoteliers limit the number of Aboriginals inside their hotels to accommodate an increase in the number of white patrons. However, they acknowledged that they had never witnessed any such incidents at the Berkeley Hotel prior to 31 December 2002. Their evidence of other hotels having excluded Aboriginal people on “special occasions” is of no probative value in the present matter. We have ignored it.
Injury to feelings
Mr Abdulla testified that due to the incident at the Berkeley Hotel, he had suffered feelings of embarrassment, humiliation, rejection, anxiety and depression. Those feelings resulted in a loss of appetite and poor sleep which caused him to consult his general practitioner Dr Ong on 10 March 2003.
In cross-examination, Mr Abdulla admitted that he complained to Dr Ong about the incident at the Berkeley Hotel, but failed to refer to the incident at the X Hotel. He denied that he had tried to blame the Berkeley Hotel for all of his ailments. He explained that he had confined his complaint to the incident at the Berkeley Hotel because that incident had had a greater impact on him because entry had been denied specifically on the ground of his race. However, he acknowledged that he had stated in his complaint to the Commissioner for Equal Opportunity[11] that he was upset by the incident at the X Hotel and that it had effectively ruined his NewYear’s Eve.
[11] Exhibit R3
The complainant called Dr Ong. His evidence was supplemented by the tender of a written report.[12] Dr Ong testified that he had been Mr Abdulla’s general practitioner since 1996. He had treated Mr Abdulla for a range of conditions, including ischaemic heart disease with unstable angina, osteoarthritis, diabetes and insomnia. As a result of his diabetes, Mr Abdulla is completely blind in his left eye. He has suffered from these various ailments since about 1998-1999. In other words, all of these illnesses pre-date the alleged act of discrimination.
[12] Exhibit A4
Dr Ong said that Mr Abdulla first consulted him in relation to the Berkeley Hotel incident on 10 March 2003. Mr Abdulla gave Dr Ong a history of the incident consistent with Mr Abdulla’s evidence. Dr Ong concluded that Mr Abdulla was suffering from stress, depression, irritability and increased insomnia. Dr Ong said that he prescribed Mr Abdulla sleeping tablets and counselled him on stress coping strategies. He continued to treat Mr Abdulla for these symptoms, as well as his other ailments throughout 2003 and 2004.
Dr Ong expressed the view that Mr Abdulla’s stress and depression had been caused by the incident at the Berkeley Hotel and that those symptoms had adversely affected Mr Abdulla’s angina and diabetes. The latter conclusion was based on Mr Abdulla suffering chest pains (angina) with greater frequency and unstable sugar levels (diabetes) attributable to poor diet due to loss of appetite.
We accept Dr Ong’s evidence that Mr Abdulla was suffering from stress and depression on the occasions that he saw him. We also accept that those symptoms may have had an adverse affect on his diabetes and angina for the reasons given by Dr Ong. However, his opinion that the complainant’s symptoms had been caused by an incident at the Berkeley Hotel was inadmissible.
The opinion of witnesses possessing peculiar skill is admissible whenever the subject matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without assistance[13]. Dr Ong’s medical qualifications did not qualify him to give the opinion which he expressed. This evidence including expressing an opinion on a false issue that fell outside his expertise. Indeed, it involved expressing an opinion on the central issue in the case. It is a fundamental principle that an expert cannot express an opinion as to the ultimate issue of fact even in respect of matters that fall within his or her field of expertise.[14] Whether there was an incident at the Berkeley and, if there had been, whether the symptoms observed by Dr Ong were causally connected to that incident are matters for the Tribunal to determine. For these reasons we have ignored Dr Ong’s opinion that the stress and depression which he diagnosed had been caused by an incident at the Berkeley Hotel.
[13] Clark v Ryan (1960) 103 CLR 486 at 491
[14] Clark v Ryan (1960) 103 CLR 486 at 491; Samuels v Flavel [1970] SASR 256 at 262
We acknowledge that the Tribunal is not bound by the rules of evidence. Pursuant to s 23(2) of the Act “the Tribunal must act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms, and is not bound by the rules of evidence, but may inform itself on any matter in such manner as it thinks fit.” The effect of this provision is that the Tribunal is entitled to have regard to any material provided it has some probative value. If the material has some probative value, the weight to be attached to it is a matter for the Tribunal.[15] But none of this means that the rules of evidence are irrelevant. As Higgins J observed in A and B v Director of Family Services:[16]
The proper approach to the application of the rules of evidence in the face of such a provision was considered by Lockhart J in Pearce v Button (1986) 8 FCR 408 at 422. His Honour said: “… a judge should be slow to invoke it [a power to dispense with compliance with rules of evidence] where there is a real dispute about matters which go to the heart of the case.”
[15] R v Deputy Industrial Injuries Commissioner ex parte Moore [1965] 1QB 456 per Diplock LJ at 488
[16] (1996) 132 FLR 172 at 177
In summary, we accept the doctor’s evidence that the complainant was suffering from stress and depression following his complaint about the Berkeley Hotel. We are also prepared to accept that those symptoms may have had an adverse affect on Mr Abdulla’s diabetes and angina, but that is the extent to which we are prepared to act on the medical evidence.
THE RESPONDENT’S CASE
Hotel policy
The Berkeley Hotel has been managed by Mr Darren Ballard and Mr Alex Laughton since 1999.
Mr Ballard and Mr Laughton testified that during their management tenure, the hotel has never had a policy of excluding Aboriginal people or restricting the number of Aboriginal people allowed into the hotel. Aboriginal customers have represented a significant proportion of the hotel’s patronage and their custom has been encouraged.
Their evidence was supported by the testimony of Mr John Stevens a part time barman employed at the hotel during 2001 and 2002. Mr Stevens said that he had never been instructed to implement policies that discriminated against Aboriginal customers nor had he witnessed any hotel employee refuse to serve an Aboriginal person by reason of race.
Similar evidence was given for the respondent by Mr Donald Smith. Mr Smith is part-Aboriginal. For many years he has been actively involved in the furtherance of Aboriginal rights. He is a member of the Aboriginal Deaths in Custody Committee and Chairperson of Meewee Inc, an organization which assists Aboriginal persons to find emergency housing and deal with issues of domestic violence. He knows the complainant Mr Abdulla. In cross-examination, he agreed that Mr Abdulla was held in high regard in the Aboriginal community.
Mr Smith said that he had been a customer of the Berkeley Hotel since about 2001. During that time, he had never seen any employee of the Berkeley Hotel commit an act of racial discrimination against a customer. Both Mr Smith and Mr Laughton gave evidence that hotel staff regularly called upon Mr Smith to act as a mediator when they were required to handle intoxicated or disorderly Aboriginal customers.
Total Control Security Agency
Between 1999 and March 2004 the respondent hired security guards employed by a licensed security firm called Total Control Security Agency (TCSA).
The respondent called Mr Rau, the manager of TCSA. He deposed that the Berkeley Hotel had never instructed TCSA to implement a policy of excluding Aboriginal persons from the hotel. In the course of cross-examination, Mr Ballard said that security guards who had not previously worked at the hotel were instructed by management to refrain from engaging in acts of racial discrimination against customers. He was contradicted by Mr Laughton who said that the guards were given no such instructions and that it was assumed they were “professionally trained and qualified.”
We prefer Mr Laughton’s evidence on this point. Mr Laughton was directly responsible for supervising and instructing guards whilst they were on duty and, thus, was in a better position to give accurate evidence on this topic. We also accept the evidence of Mr Rau that TCSA did not screen their security guards to determine if they possessed racist attitudes, nor did it instruct them to refrain from engaging in acts of racial discrimination whilst carrying out their duties.
The security guards worked at the hotel on Friday and Saturday nights and on New Year’s Eve. Each security guard, at the commencement of his shift, was issued with a rectangular white plastic coated security badge approximately 10cm x 6cm. Each badge had printed on it, in bold black letters, the words “Security” (top of badge), “Berkeley Hotel” (bottom of badge) and a number allocated to the guard.
The guard was then required to record in a “Log and Incident Book” (“the Log”) his name and security licence number, the time he commenced his shift and the number on the badge issued to him. Upon completing his shift the guard was required to record in the Log any incidents involving customers that had occurred during his shift and the time it finished.
31 December 2002
On 31 December 2002 Mr Laughton and Mr Ballard were on duty at the hotel. They testified that the nightclub opened at 9pm and that the front bar had opened earlier in the day. Both sections of the hotel remained open until the early hours of the following morning. Patrons were allowed to enter the nightclub through the central doors. However, the eastern doors were closed the entire night.
Mr Laughton arranged for three security guards from TCSA to work at the hotel that night. They were scheduled to commence their shifts at 9.00pm, 11.30pm and 2.30am respectively and complete their shifts in the early hours of New Year’s day. Their starting times were staggered to coincide with the anticipated increase in the number of people wanting to enter the hotel as the night wore on.
The first guard to work at the hotel that night was Mr Phillip Clarke. He was called to give evidence for the respondent. He was a relatively inexperienced security guard having obtained his licence to perform security work only a few months earlier on 31 August 2002. He commenced employment with TCSA shortly thereafter. The night of 31 December 2002 was the first and only time he worked at the Berkeley Hotel. Prior to that night he had worked part-time at suburban hotels for about two months and on one occasion at the ‘Big Day Out’.
Mr Clarke testified that he arrived at the hotel shortly before 9pm and received instructions from the manager in relation to the duties that he was required to perform. Mr Laughton gave evidence that he was the person to whom Mr Clarke spoke. Mr Clarke was given one of the hotel’s security badges and shown around the premises by Mr Laughton. He was also required to sign the Log[17] in which he indicated that he commenced work at 9pm. Both witnesses said that Mr Clarke was instructed to deny entry to people who were under 18 years of age, inebriated to an unacceptable extent, or inappropriately dressed. Patrons were required to wear neat casual clothes in the front bar and the nightclub. However, he was not instructed to prevent Aboriginal people entering the front bar and nightclub.
[17] Exhibit R6
Mr Clarke said that at about 9pm he went outside the hotel and stood between the door to the front bar and the central door to the nightclub. At the time he was dressed in black trousers, a white shirt, black tie and a Nike jacket to which he had pinned the security badge. He gave the following description of himself: 6’ tall, stocky build, 145 kgs, clean shaven with slicked back collar length dark brown hair that was longer on the top than the sides. He remained in the vicinity of the door to the front bar and the central door to the nightclub until he completed his shift. He said there was no stool on the footpath outside the hotel. He stood the entire time that he was on duty. His evidence in respect of these matters was supported by Mr Laughton and Mr Ballard who said that they occasionally went outside and spoke to Mr Clarke to see if he was experiencing any problems.
Mr Clarke testified that in the course of his shift he refused some people, including Aboriginals, entry into the hotel because they did not meet the hotel’s dress and sobriety requirements. He stated said that he did not refuse any person entry on the ground of race. He said that some of the people who entered the front bar and the nightclub during his shift were Aboriginals. He denied having any confrontation of the kind described by Mr Abdulla and his witness Mr John Clark. In the course of Mr Phillip Clarke’s evidence he was asked if he could identify Mr Abdulla who was sitting in the courtroom at the time. He said that he had never seen Mr Abdulla before.

Mr Laughton and Mr Ballard deposed that during Mr Clarke’s shift they were moving about the hotel attending to their managerial responsibilities. On occasions when they looked outside the hotel or went outside to speak to Mr Clarke they never witnessed any arguments or disagreements involving Mr Clarke and persons trying to enter the hotel. Furthermore, Mr Clarke never reported to them that he had experienced any such problems. Mr Ballard further testified that he observed Aboriginal customers in the front bar and the nightclub during Mr Clarke’s shift. He said that by about 10pm there would have been about 40-50 people in the front bar and about 10-15 people in the nightclub. He estimated that there were approximately 10 Aboriginals in the front bar and 3-4 in the nightclub at that time.
At about 11.30pm Mr Clarke informed Mr Laughton that he was feeling ill. He asked if he could leave early. Mr Laughton allowed him to leave at about midnight. Another security guard who was due to start work at 11.30pm failed to arrive. In the result Mr Laughton and Mr Ballard assumed the responsibility of screening patrons entering the front bar and nightclub from midnight until about 2.30am when a replacement guard was able to attend. Mr Laughton and Mr Ballard said that during the time they were required to carry out security duties they allowed Aboriginal persons into the front bar and nightclub provided they complied with the hotel’s entry requirements.
Mr Steve Olsen and Mr Hedley Vogt, security guards from TCSA, subsequently took over the security duties. They commenced their shifts at 2.30am and 2.45am respectively. Mr Vogt was called by the respondent. He stated that he was instructed to stand outside the hotel and monitor patrons entering the front bar and the nightclub. He said that he was instructed to refuse entry to persons who were under age, intoxicated or inappropriately dressed. He was not instructed to exclude Aboriginals on racial grounds.
Mr Vogt pointed out that he is a person of Aboriginal descent and that he would never have enforced such a policy. He said that there were Aboriginal people inside the front bar and the nightclub during his shift. Indeed, at about 6am Mr Vogt and Mr Olsen were forced to eject from the nightclub several intoxicated and unruly Aboriginal patrons. The incident was subsequently recorded in the Log[18] by Mr Olsen when he and Mr Vogt completed their shifts at about 9.30am.
[18] Exhibit R6
Donald Smith also gave evidence of the events on 31 December 2002, though he could “vaguely remember” them. He said that he attended the front bar of the Berkeley Hotel at about 9pm-10pm, but later said in cross-examination that he attended the hotel during the afternoon. He said that there were Aboriginal people inside the hotel when he arrived. Mr Smith said that he left, and returned to, the hotel several times during the afternoon and evening. He left the hotel for the final time sometime after midnight. Mr Smith said that he drank beer intermittently during the day and evening, but denied that he got intoxicated.
Mr Smith also gave vague evidence about seeing Mr Laughton and a “big” “tall” guard standing outside the hotel performing security duties. He said Mr Laughton was positioned near the door to the front bar and the guard was near the central door to the nightclub. He stated that he first saw the security guard standing outside the hotel at about 6pm-7pm. He said that during the time he was at the hotel, he never saw any Aboriginal person prevented from entering the premises. On the other hand he did not suggest that he had, in fact, seen any Aboriginal person attempt to enter the hotel whilst he was there let alone while Mr Phillip Clarke is said to have been on duty. The evidence is also unclear as to whether Mr Smith entered the hotel at any time during Mr Clarke’s shift.
Other evidence
In addition the respondent called two witnesses who we shall call R and G. R is the licensor of the X Hotel and managed it between 1999 and 2002. He ceased managing the hotel before 31 December 2002. G is the current manager of the X Hotel. He took over from R. Neither R nor G were present at the X Hotel on 31 December 2002.
The respondent sought to adduce evidence from G of his understanding of what occurred at the X hotel based on discussions that G claimed to have had with a guard who was on duty at the relevant time. Any evidence that G could have given on that topic would have been hearsay. As earlier observed the Tribunal is not bound by the strict rules of evidence. However, we were not prepared to dispense with compliance with the hearsay rule on this potentially contentious matter. Accordingly, the proposed evidence was ruled to be inadmissible.
The respondent further sought to elicit from R his knowledge of what occurred based on a conversation that he is said to have had with G. Such evidence would have been pure hearsay. As it turned out, R said that he was given no details of the incident by G and that he instructed G to settle the matter. The evidence given by R has no probative value. We have ignored it.
FINDINGS
Summary
We found Mr Abdulla to be an honest witness. We did not detect any deliberate embellishment or exaggeration on his part. Though mistaken about some peripheral matters, we also believe that he gave a reliable account of the conversation that he had with the security guard outside the Berkeley Hotel.
On balance, we are satisfied that on the night of 31 December 2002 Mr Abdulla was denied entry into the Berkeley Hotel. We find that the guard who refused him entry was Mr Phillip Clarke and that the incident occurred probably a short while after Mr Clarke commenced duty at 9pm. We are further satisfied that Mr Clarke informed Mr Abdulla that management had told him not to allow any more Aboriginal people into the hotel or words to that effect.
We also find that the complainant’s account was substantially corroborated by Mr John Clark. It is fair to say that we were less impressed with Mr John Clark as a witness. However, we believe that he substantially told the truth about the conversation that he had with the security guard outside the hotel. We find that after leaving the front bar and speaking to the complainant, Mr Clark spoke to Phillip Clarke about his reasons for refusing the complainant entry. We find that he informed Mr Clark that no more Aboriginals were allowed into the hotel or words to that effect.
We also find that, a short while after the incident, Mr Abdulla complained about the guard’s conduct to the Kumangka workers, Deidre Richardson and Margaret Jackson. We believe that the Kumangka workers gave an honest account of the complaint, though they were mistaken about some aspects of it. We accept their evidence that Mr Abdulla appeared upset and despondent when they first saw him in Hindley Street and that he told them that he had been denied entry into the Berkeley Hotel because of his Aboriginality.
We hasten to add that we have not used the evidence of Mr Abdulla’s complaint to the Kumangka workers as evidence of the truth of Mr Abdulla’s assertions but rather for the limited purpose of judging the consistency of his conduct with his testimony. In our view, Mr Abdulla’s despondency and the fact of his complaint was conduct consistent with that of a person who, only a short time earlier, had been treated in the manner alleged by him.
Rejection of respondent’s criticisms
Mr Perry, for the respondent, vigorously attacked the credibility of Mr Abdulla. He accepted that the complainant had been wrongly refused entry into the X Hotel, but contended that the complainant had fabricated his allegations against the Berkeley Hotel for financial reward. It follows from our findings that we reject that contention. The following is a summary of Mr Perry’s key criticisms of the complainant’s case and our reasons for rejecting those criticisms.
Discrepancies in complainant’s evidence
Mr Perry submitted that there were several features of Mr Abdulla’s description of the security guard and the circumstances in which Mr Abdulla claims to have seen the guard that were manifestly wrong. Mr Perry argued that those deficiencies in the complainant’s account served to show that he never saw or spoke to any security guard employed at the Berkeley Hotel.
In particular, Mr Perry emphasised the following matters.
Time of incident
Mr Abdulla said that the guard refused him entry into the hotel at about 8.45pm. However the Log[19] and the evidence given by Mr Phillip Clarke, Mr Laughton and Mr Ballard showed that Mr Clarke was the first guard on duty that night and that he did not commence work until shortly after 9pm. We accept the evidence presented by the respondent on this topic. But whether the incident happened at 8.45pm or some time after 9pm is a matter of minor detail. We are satisfied that Mr Abdulla was merely mistaken about the time the incident occurred.
[19] Exhibit R6
We turn to the other evidence presented by the complainant on this topic. Mr John Clark said that he saw Mr Abdulla speaking to a guard outside the hotel at about 9pm. This evidence is consistent with the incident having occurred at about the time Mr Phillip Clarke commenced his duties that night. However, it cannot be overlooked that, in his written complaint to the Commissioner for Equal Opportunity, Mr Clark said that the incident happened at about 1.15am. We believe that Mr Clark was simply confused about the time of the incident when he filed his written complaint. Nonetheless, in light of this discrepancy we are not prepared to attach much weight to his testimony as to the time of the incident.
This brings us to the evidence of the Kumangka workers. Ms Richardson said that Mr Abdulla first spoke to them about the incident at the Berkeley Hotel at about 8.30pm. Ms Jackson thought that the relevant conversation occurred at about 7.15pm–7.30pm. We believe that they are mistaken about the time they first spoke to Mr Abdulla. Nonetheless, their evidence suggests that Mr Abdulla complained to them at a relatively early stage that night.
Having regard to the evidence as a whole we find that the incident happened probably a short time after Mr Abdulla believes it occurred. That is, that it happened a short time after Mr Phillip Clarke commenced duty at 9pm.
Guard’s location
Mr Perry also pointed to the fact that Mr Abdulla said that the guard was sitting on a stool by the eastern door. The evidence presented by the respondent, which was supported by the respondent’s witness John Clark, established that there was no stool outside the hotel and that the eastern door was closed. At all times Mr Phillip Clarke was positioned between the door to the front bar and the central door to the nightclub. We accept the evidence presented by the respondent on this topic, but it does not shake our confidence in Mr Abdulla’s credibility. We find that his evidence in relation to these matters was the result of mistaken recollection.
Description of guard
Mr Perry also challenged the complainant’s honesty on the basis of his description of the guard. As earlier observed Mr Abdulla stated, in cross-examination, that the guard was of medium build and weighed about 80-85kgs whereas Mr Phillip Clarke is a very big man who, at the time, weighed about 145kgs. Mr Abdulla also said that the guard was wearing a circular security badge. However, the respondent presented evidence that the security badges issued by the hotel were rectangular.
In our opinion, these discrepancies do not point to fabrication. The size and shape of the badge are matters of minor detail about which the complainant could easily have been mistaken. The complainant’s evidence concerning the weight and build of the guard was also an honest but poor attempt to describe those features. That is borne out by Mr Abdulla’s evidence that the guard was a “big fellow” who “looked like a version of Steve Condous”. We are satisfied that the witness’s reference to the former Lord Mayor was an attempt to describe a very big man. Mr Phillip Clarke was such a man. He weighed approximately 145kgs at the time.
Furthermore, the balance of Mr Abdulla’s description of the guard (except hair colour)[20] is consistent with Mr Clarke’s appearance.[21] In particular, Mr Abdulla said that the guard was about 6’, clean shaven and had oily pushed back hair. Mr Clarke is in fact 6’. He was clean shaven with slicked back hair at the time. Mr John Clark also recalls that the guard, to whom he spoke was tall and heavily built. In our view the descriptions of the guard, closely resemble Mr Phillip Clarke.
[20] See [12]
[21] See [70]
In short we are satisfied that the complainant spoke to a man outside the Berkeley Hotel who was wearing a security badge, resembled Mr Clarke and purported to be acting on the authority of the hotel’s management. We are satisfied that that person was Phillip Clarke and that Mr Abdulla encountered him probably a short time after Mr Clarke commenced his duties.
Mr Abdulla encountered Mr Phillip Clarke a short time after Mr Phillip Clarke commenced his duties outside the hotel. In reaching that conclusion we have not overlooked Mr Clarke’s denial of ever having seen Mr Abdulla before he gave evidence. In our view the confidence with which Mr Clarke made that assertion was surprising. On Mr Clarke’s account he had had contact with a number of Aboriginal people entering or trying to enter the hotel that evening. By the time he gave evidence about the relevant events some two years had elapsed. In those circumstances it is difficult to believe that Mr Clarke could reliably assert that he never saw Mr Abdulla on the night in question.
Discrepancies between the accounts given by the complainant and John Clark
Mr Perry further submitted that inconsistencies between the accounts of Mr Abdulla and Mr John Clarke served to indicate that the two of them had conspired to give a false account to the Commissioner for Equal Opportunity and the Tribunal.
First, he stressed that Mr Clark said that he met Mr Abdulla on the way to the Berkeley Hotel whereas Mr Abdulla suggested that he first saw Mr Clark that night outside the hotel after the guard had refused to let him inside. Second, Mr Clark said that Mr Abdulla complained that “blackfella’s” were not being allowed into the hotel while Mr Abdulla said that he was told that no more “Aboriginals” were allowed in. The significance of the latter point is questionable even on the respondent’s case. On either version the complainant was denied entry on the ground of his race.
In any event these differences do not shake our confidence in the truthfulness or reliability of Mr Abdulla’s allegations. As earlier observed Mr Clark in his written complaint to the Commissioner[22] stated that he “came across” Mr Abdulla outside the hotel and that Mr Abdulla complained to him that “Aboriginal” people were not being allowed in. The terms of Mr Clark’s complaint accord with Mr Abdulla’s testimony. The complaint was made on 2 January 2003 when the events would have been fresh in his memory. We believe that Mr Clark gave honest but mistaken evidence in respect of these matters.
[22] See [33]
As we have said we are satisfied that Mr Abdulla first saw Mr John Clark after his encounter with Mr Phillip Clarke. We find that Mr Clark had entered the Berkeley Hotel before Mr Abdulla had arrived and before Mr Phillip Clarke commenced his security duties. We further find that upon leaving the hotel Mr Abdulla told Mr Clark that he had been refused entry because no more “Aboriginals” were allowed in. We are also satisfied that Mr John Clark then spoke to Phillip Clarke and was given the same explanation.
Patricia Carter
As earlier stated, Mr Abdulla testified that following his exchange with the security guard his niece Patricia Carter and a male friend, possibly named Spencer Sumner. emerged from the hotel. Mr Abdulla informed his niece of the incident. She abused the guard and then left with Mr Sumner.
Mr Abdulla was cross-examined about his reasons for not calling his niece. He explained that between the date of the incident and the hearing of the complaint he had spoken to Ms Carter about the matter and that she had disclosed that she could not recall the events because she was drunk at the time. She said that she also suffered from schizophrenia. Mr Abdulla was not asked to give an explanation for failing to call Mr Sumner.
In his closing address, Mr Perry submitted that if Ms Carter had no recollection of the incident due to intoxication or a combination of intoxication and mental illness, then the complainant’s failure to call Ms Carter was understandable. However, he was critical of Mr Sumner’s absence. He suggested that the Tribunal should infer that the complainant made no effort to call Mr Sumner because he was aware that Mr Sumner would not have advanced his case.
It is well settled that where evidence on a material issue is in conflict and leaves the tribunal of fact in doubt, the failure of a party to call a witness whom he or she would normally be expected to call to give direct evidence on the issue may lead to the inference that the witness would not assist in proving the version of facts contended for by that party.[23]
[23] Jones v Dunkel (1959) 101 CLR 298 Kitto J at 308, Windeyer J at 321; Minister for Immigration & Ethnic Affairs v Arslan (1984) 4 FCR 73 at 76
This principle does not assist the respondent. It could hardly be suggested that Mr Sumner is a witness whom the complainant could be reasonably expected to call when he was not questioned as to his reasons for not calling Mr Sumner. It is not known, for instance, whether Mr Sumner was available to give evidence or if his whereabouts are even known to Mr Abdulla. Furthermore, any assistance that Mr Sumner could have provided would have related to a peripheral issue. In any event, despite the conflict in the evidence, the Tribunal has not been left in doubt as to the relevant events outside the hotel. We are satisfied that the complainant was denied entry for the reasons he deposed. We accept his evidence and that of his supporting witnesses. In other words, the evidence which has been presented has not left in our minds a doubt that Mr Sumner, or Ms Carter for that matter, could assist us to resolve.
Mr Perry also made the point that Mr John Clark made no reference in his evidence to having witnessed an incident between the security guard and Mr Abdulla’s niece or any other person for that matter. The explanation might lie in the fact that the incident occurred, contrary to the complainant’s belief, before Mr John Clark came out of the hotel, or it might be that Mr Clark has simply forgotten the incident. Be that as it may, the discrepancy in the complainant’s case on this topic does not alter our view about the general truthfulness of Mr Abdulla’s account
Police
Mr Perry also challenged Mr Abdulla’s claim that he approached police in Hindley Street on two separate occasions and complained about the manner in which he had been treated at the X Hotel and at the Berkeley Hotel. He was scornful of Mr Abdulla’s evidence that the police did not pursue his complaints and treated them with a degree of flippancy. He suggested that it was implausible that members of the police force would have conducted themselves in that manner and that this was a further indication that Mr Abdulla had fabricated his account.
In our view the lack of interest shown by the police is not surprising The police had no power to investigate breaches of the Act and, no doubt, on such a busy and festive night in the city would have been preoccupied with preserving the peace and preventing crime in the streets. Their duties as police officers did not justify a flippant dismissal of Mr Abdulla’s complaints. However, they serve to explain the police officers’ lack of interest in the complaints. We do not doubt Mr Abdulla’s evidence that he drew the incidents to the attention of police patrols in Hindley Street.
Discrepancies between the accounts given by the complainant and the Kumangka workers.

In the course of cross-examining the Kumangka workers, Mr Perry suggested that they had fabricated their accounts to advance Mr Abdulla’s complaint. However, in the course of his closing address, Mr Perry resiled from that allegation and suggested that they had given honest, but mistaken evidence. In particular he contended that they were mistaken about Mr Abdulla having informed them that he had been denied entry into the Berkeley Hotel.
We were impressed by Ms Jackson and Ms Richardson. They struck us as honest witnesses. On the issue of reliability, we accept that they were mistaken about aspects of the complaints made to them by Mr Abdulla, but not to the extent that the respondent would have us believe.
As earlier observed, both Ms Richardson and Ms Jackson testified that Mr Abdulla complained that he had been refused entry into the Berkeley Hotel on the ground that he was an Aboriginals and also because he was intoxicated. Ms Jackson said that Mr Abdulla also complained that he had been told by the hotel’s security that he was not sufficiently well dressed. Both said that he also complained, on either the first or second occasion they met, that he had been denied entry into the X Hotel as well.
We find, consistent with Mr Abdulla’s evidence and his complaint to the Commissioner on 2 January 2003, that he in fact told them that he had been refused entry to the Berkeley Hotel on the ground of race only and that his complaint about having been refused entry on grounds of intoxication and dress related to the X Hotel. Given the time that has passed, the blending of the terms of the complaints in the minds of the witnesses is hardly surprising.
However, we reject as implausible the respondent’s contention that both Ms Richardson and Ms Jackson mistakenly believed that Mr Abdulla had complained to them about the Berkeley Hotel when, on the respondent’s case, he never mentioned the Berkeley Hotel at all. We are satisfied that both witnesses were correct in stating that Mr Abdulla complained to them about the Berkeley Hotel.
Mr Perry submitted that if Mr Abdulla had complained to the Kumangka workers about the Berkeley Hotel, as well as the X Hotel, then it was strange that they went to the trouble of attending the latter but not the former for the purpose of determining whether Aboriginal people were being discriminated against.
In our view, their failure to attend the Berkeley Hotel it is not all that surprising. First, there is Mr Abdulla’s explanation that he told the Kumangka workers that he did not want to return to the Berkeley Hotel and that his primary reason for accompanying them to the X Hotel was to see if his son had returned. Furthermore, the decision to go to the X Hotel was made after Mr Abdulla met the Kumangka workers in Hindley Street on the second occasion. At that stage, the youth workers were heading in the general direction of the X Hotel and may have already gone past the Berkeley Hotel. In those circumstances it is understandable that the Kumangka workers chose to investigate what was happening at the X hotel rather than turn around and head back to the Berkeley Hotel.
As earlier observed, the fact that Mr Abdulla complained to the Kumangka workers is entirely consistent with his allegations. But on other hand the fact of his complaint does not sit easily with the respondents contention that Mr Abdulla was not involved in any kind of incident that resulted in him being refused entry into the Berkeley Hotel. In our view, it is an unlikely hypothesis that Mr Abdulla would have gone to the trouble of making a false complaint that night for the purpose of laying the foundation for a later application for compensation through the Equal Opportunity Commission. Nor do we believe that the despondency he displayed, as observed by the Kumangka workers, was an act. On balance, we are satisfied that he made a complaint because he had something to complain about.
Hotel Policy
We accept that prior to 31 December 2002, the respondent did not pursue a policy of excluding Aboriginals on the ground of race. That finding is consistent with not only the evidence given by the respondent’s witnesses, but also the evidence of Mr Abdulla and John Clark. The complainant and Mr Clark both said that they had previously attended the Berkeley Hotel. We also accept that on the night of 31 December 2002, Aboriginals were allowed into the front bar and nightclub of the Berkeley Hotel, at least, before and after Mr Phillip Clarke’s shift. That finding accords with the evidence given by the respondent’s witnesses Darren Ballard, John Laughton, Donald Smith and Hedley Vogt.
Mr Perry submitted that in light of those facts, it is unlikely that Mr Laughton or Mr Ballard would have directed Mr Phillip Clarke to exclude Aboriginals. That maybe so but it does not follow that Mr Clarke did not act in the manner alleged by Mr Abdulla. For all we know Mr Clarke may have gone on a frolic of his own. He may, contrary to his evidence, resent Aboriginals. He may have wrongly assumed, perhaps as a result of previous experience in other hotels, that Aboriginals might not be welcome. Mr Clarke had not worked at the Berkeley Hotel before that night and upon commencing his shift had received no instructions from Mr Laughton as to the hotel’s policies in relation to indigenous people.
Furthermore, while we doubt that management specifically directed Mr Phillip Clarke to prevent Aboriginals entering the hotel, we do not dismiss the possibility that Mr Laughton or some other person associated with the hotel may have expressed concern about the number of Aboriginal customers that might attend the hotel that night bearing in mind the evidence given by Mr Laughton and other witnesses called by the respondent that some Aboriginal customers had caused trouble in the past. Any such remarks might have been misunderstood by Mr Clarke as a direction or indication that Aboriginals should not be allowed into the hotel or that he should regulate the number that he let in.
We have not overlooked the evidence which suggests that there were Aboriginals inside the front bar during Mr Phillip Clarke’s shift. The difficulty with this evidence is that it is not clear when those persons entered the front bar. They may have already been in the bar when Mr Clarke commenced his shift.
Nor have we overlooked Mr Ballard’s evidence that he saw some Aboriginals in the nightclub during Mr Clarke’s shift. We acknowledge that if there were Aboriginals inside the nightclub during that period that it is unlikely they would have gained entry without Mr Clarke’s permission. But we have reservations about the accuracy and reliability of Mr Ballard’s evidence on this topic.
The fact of the matter is that when Mr Ballard went about his duties that night he had no reason to specifically note the presence of a few Aboriginals in the nightclub. His belief that he saw Aboriginals in that section of the hotel during Mr Clarke’s shift may have been influenced by having seen them in the front bar or as a result of them filtering into the nightclub after Mr Clarke completed his shift. In any event, even if Mr Clarke had allowed some Aboriginals to enter the front bar or the nightclub such conduct would not be inconsistent with the guard having made a capricious decision to exclude Mr Abdulla on the ground of his race.
We acknowledge that it is not clear why Mr Clarke refused Mr Abdulla entry on the ground of his race. But identification of that reason is not essential. The critical issue is whether Mr Clarke, for whatever reason, refused the complainant entry on the ground of his Aboriginality. As we have said we accept the complainant’s evidence and that of his supporting witnesses.
Application of law to facts
Section 51 of the Act provides as follows:
For the purposes of this Act, a person discriminates on the ground of race –
(a)if he or she treats another person unfavourably by reason of the other’s race;
(b)if he or she treats another person unfavourably because the other does not comply, or is not able to comply, with a particular requirement and –
(i) the nature of the requirement is such that a substantially higher proportion of persons of a different race complies, or is able to comply, with the requirement than of those of the other’s race;
and
(ii) the requirement is not reasonable in the circumstances of the case;
or
(c)if he or she treats another unfavourably on the basis of a characteristic that appertains generally to persons of the other’s race, or on the basis of a presumed characteristic that is generally imputed to persons of that race.
Section 6 (3) of the Act states:
(3)For the purposes of this Act, a person (“the discriminator”) treats another unfavourably on the basis of a particular attribute or circumstance if the discriminator treats that other person less favourably than in identical or similar circumstances the discriminator treats, or would treat, a person who does not have that attribute or is not affected by that circumstance.
Section 61 of the Act provides as follows:
It is unlawful for a person who offers or provides –
(a)     goods;
or
(b)     services to which this Act applies,
(whether for payment or not) to discriminate against another on the ground of race—
(c)     by refusing or failing to supply the goods or perform the services
or
(d)     in the terms or conditions on which or the manner in which he supplies the goods or performs the services.
Section 5 of the Act provides that the ‘race’ of a person means the ‘nationality, country of origin, colour or ancestry of the person or any other person with whom he or she resides or associates’. The section also defines “services to which the Act applies” to include “entertainment, recreation or refreshment”.
The respondent provided a service to which the Act applies in the provision of refreshment. The refusal to allow the complainant to enter the hotel by reason of his Aboriginality constituted a refusal of a service to which he applied on the ground of race. That refusal constituted a breach of the combined operation of the abovementioned provisions.
The next question which arises is whether the respondent is vicariously liable for Phillip Clarke’s conduct?
Section 91 of the Act states:
(1)Subject to this section, a person is, for the purposes of this Act , vicariously liable for the acts or defaults of agents or employees while acting in the course of their agency or employment.
…
(3)In any proceedings brought under this Act against a person in respect of an act alleged to have been committed by an agent or employee acting in the course of the agency or employment, it is a defence to prove that the person exercised all reasonable diligence to ensure that the agent or employee would not act in contravention of this Act.
The Act does not define “person”. However, s 4 of the Acts Interpretation Act1915 defines “person” to include ‘a body corporate’. The respondent is a body corporate and accordingly s 91 operates to impose vicariously liability on the respondent for the acts of employees performed in the course of their employment. It was not in dispute that Mr Clarke was an employee for the purposes of the Act.
For the reasons previously expressed we doubt that Mr Laughton or Mr Ballard expressly instructed Mr Clarke to prevent, or to limit the number of, Aboriginals entering the hotel. However, we are satisfied that, whether or not Mr Clarke had such instructions, he was acting in the course of his employment when he refused to allow Mr Abdulla to enter the hotel. Mr Perry did not suggest otherwise but argued that the respondent was not vicariously liable because the respondent had exercised all reasonable diligence to ensure that its employees did not contravene the Act.
We reject this argument. From the evidence presented by the respondent it is clear that the hotel’s management never took any steps to instruct security guards and other employees that it was unlawful to discriminate against customers on the ground of race. Nor did management inquire of TCSA whether their security guards had received any such instruction. Management simply assumed that TCSA would provide suitably trained guards. In fact, TCSA had provided no relevant training or instruction.
In our view it is not sufficient for an employer to have a dormant anti-discriminatory policy or to assume that some other agency or organisation has trained its employees in this area. If an employer wants to successfully rely on the “all reasonable diligence” defence it should have in place a system which ensures that employees are, at least, informed of the existence of the policy. While the respondent could not be expected to know the propensity of each employee, it had a duty to ensure that its non-discriminatory policy was communicated to all its employees, including security guards, associated with the provision of services to members of the public. Here no positive steps were taken in that regard. No oral or written instructions were given to guards directly or even indirectly through TCSA. In those circumstances, it could be said the respondent exercised all reasonable diligence.[24]
[24] Evans v Lee [1996] EOC 92-822; Bevacqua v Klinkert [1993] EOC 92-576
Relief
The complainant seeks relief by way of compensation for injury to feelings. Section 96 relevantly provides:
(1) The Tribunal may, on determining that the respondent in proceedings under this Part has acted in contravention of this Act, make any one or more of the following orders:
(a) an order requiring the respondent to pay compensation (of such amount as the Tribunal thinks fit) to any person for loss or damage arising from the contravention;
(b) an order requiring the respondent to refrain from any further contravention of the Act;
(c) an order requiring the respondent or any other party to the proceedings to perform specified acts with a view to redressing loss or damage arising from the contravention.
…
(3)The damage for which a person may be compensated under subsection (1) includes injury to his or her feelings.
…
The security guard’s refusal to allow Mr Abdulla into the hotel was a serious breach of the Act. The complainant was not responsible for any conduct that could have justified exclusion. He was sober and appropriately dressed. He had not engaged in any misbehaviour. We accept Mr Abdulla’s evidence that he suffered humiliation, anxiety and depression as a result of this act of discrimination.
We also accept that these symptoms may have had an adverse impact on his health. However, it must be remembered, as Dr Ong conceded in cross-examination, there have been other sources of stress in Mr Abdulla’s life since 31 December 2002, including the fact that he has had to cope with long-standing ailments, difficulties associated with his Housing Trust accommodation and grief due to the death of one of his children. The incident at the X Hotel also had an adverse impact on him. It is simply impossible for us to isolate and quantify what impact, if any, the Berkeley Hotel incident has had on the complainant’s angina and diabetes.
There can be no doubt that the complainant deserves an apology from the respondent for the unlawful act of its employee. Furthermore, it is appropriate and just that the respondent pay the complainant compensation for the injury to his feelings. The fact that the respondent did not have a policy of excluding Aboriginals is a relevant factor in determining the appropriate amount of compensation. Nonetheless, the respondent must accept responsibility for the incident by reason of its failure to exercise all reasonable diligence to ensure that its employees did not contravene the Act. Doing the best we can we determine the appropriate compensation to be $3,000.
ORDERS
The orders of the Tribunal are as follows:
1. That the respondent Berkeley On Hindley Street Pty Ltd publish an apology to the complainant in the State-wide edition of the The Advertiser newspaper for the respondent’s contravention of the Act. We further order that the wording and placement of the apology be settled with the Commissioner for Equal Opportunity prior to publication. We further order that the apology be published within 60 days of the publication of this decision.
2. That the respondent pay the complainant the sum of $3,000 as compensation.