Bassili v The Star Pty Ltd

[2016] NSWCATAD 167

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Bassili v The Star Pty Ltd [2016] NSWCATAD 167
Hearing dates:	19 July 2016
Date of orders:	27 July 2016
Decision date:	27 July 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	N Hennessy LCM, Deputy President
Decision:	The applicant’s application for leave for the complaint of disability discrimination to proceed is refused.
Catchwords:	ANTI-DISCRIMINATION – – refusal by respondent to revoke order excluding applicant from casino -complaint of disability discrimination declined by President of Anti-Discrimination Board as lacking in substance– whether fair and just for complaint to proceed
Legislation Cited:	Anti-Discrimination Act 1977, s 96, s 49A, s 49M Casino Control Act 1992 (NSW), s 4A(1)(c); 79, s 84.
Cases Cited:	Bassili v Star City Pty Ltd [2008] NSWADT 62 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 Purvis v New South Wales (2003) 217 CLR 92 Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262
Category:	Principal judgment
Parties:	Rene Bassili (Applicant) The Star Pty Ltd (Respondent)
Representation:	Counsel: J McLeod (Respondent) Self-represented (Appellant)
File Number(s):	1610320
Publication restriction:	Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013, publication or disclosure of the content of the respondent’s “Exclusions & Contact Policy” other than as referred to in these reasons, is prohibited.

REASONS FOR DECISION

The question

1. Mr Bassili lodged a complaint of disability discrimination against The Star Pty Ltd when they refused to revoke an order excluding him from the casino. Mr Bassili says that one of the reasons The Star refused to revoke the order was because he has paranoid schizophrenia with secondary depression. The Star says that they refused to revoke the order because Mr Bassili “was experiencing difficulties with gambling, and out of a genuine concern for his welfare.”

2. The Acting President of the Anti-Discrimination Board declined the complaint as lacking in substance. The question in these proceedings is whether it is fair and just for Mr Bassili’s complaint to go ahead: Anti-Discrimination Act 1977 (NSW), s 96(1). The onus is on Mr Bassili to satisfy the Tribunal that the complaint should proceed to a hearing.

3. The Supreme Court set out the principles to be applied when determining whether to grant leave in Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [28] – [38]. In that case Schmidt J:◦

(1) emphasised that a cautious approach should be adopted because a refusal of leave will “finally determine the rights of the parties under this legislative scheme, which is dealing with important human rights”;

(2) found that the Tribunal’s discretion is unfettered and is not confined to the grounds on which the President of the Anti-Discrimination Board may decline a complaint;

(3) concluded that leave must be granted or refused “depending on what (is) fair and just in the particular circumstances, with an onus falling on the plaintiff to establish that the leave should be granted; and

(4) noted that where it is apparent that the complaint lacks substance leave may be refused, if that is what justice dictates.

4. I have decided to refuse leave.

How the question arises

5. On 22 June 2006 The Star, which has the exclusive licence to operate a casino in NSW, issued Mr Bassili with a non-voluntary exclusion order prohibiting him from entering or remaining in the casino: Casino Control Act 1992 (NSW), s 79. The maximum penalty for breaching such an order is $5,500 or imprisonment for 12 months, or both: Casino Control Act, s 84(1).

6. Initially Mr Bassili complained to the President of the Anti-Discrimination Board that the exclusion order discriminated against him on the ground of his disabilities. He also complained that The Star failed to enforce the order in February 2007 which, he says, resulted in the loss of his entire savings. Those complaints were referred to the Tribunal and The Star applied for them to be dismissed as lacking in substance. On 27 February 2008, the Tribunal summarily dismissed the complaints on that basis: Bassili v Star City Pty Ltd [2008] NSWADT 62. The Tribunal as presently constituted is not bound by the findings, reasoning or decision in that matter because it involved a different issue – whether the complaints about making the exclusion order and failing to enforce it should be summarily dismissed under s 102 of the Anti-Discrimination Act.

7. Before Mr Bassili made the current application for revocation, he had made inquiries on two separate occasions about the mechanism for revoking the order. He did not make a formal application for revocation until 8 September 2015.

8. The Star has power to revoke an exclusion order: Casino Control Act, s 82(1). While the Casino Control Regulation 2009 (2009) (NSW) may make provision as to the matters to be taken into consideration in revoking the order, no such regulations were brought to my attention: Casino Control Act, s 82(5). One of the primary objects of the legislation is “containing and controlling the potential of a casino to cause harm to the public interest and to individuals and families”: Casino Control Act, s 4A(1)(c). The Star correctly identified this object as being relevant when making a decision to revoke an exclusion order.

9. The Star says that when they received Mr Bassili’s application for revocation, they followed the procedures in their Exclusions & Contact Policy (the policy). I made an order in these proceedings prohibiting the disclosure of this document, other than in these reasons: Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(a). The policy states that a person who is the subject of a voluntary or non-voluntary exclusion order may apply to the Exclusion Review Committee to revoke the order. A request to revoke an order must specify the grounds on which the application is made. The policy goes on to provide a non-exhaustive list of the matters that will be taken into account when considering whether to revoke an order. That list includes:

1. the period of time since the exclusion order was issued;

2. the circumstances surrounding the exclusion;

3. any re-entries/breaches of the order;

4. staff members involved; and

5. any additional information supplied by the Government Inspectorate.

10. The term “problem gambler” is used at 4.2 of “The Star responsible gambling code” (the Code). Signs of such a problem are said to include: gambling every day of the week; gambling continuously without taking a break for extended periods of time, getting cash out from an ATM at the venue on multiple occasions and trying to borrow or scam money or sell valuables to others.

11. In response to the application for revocation, The Star told Mr Bassili in an email dated 19 August 2015 that the Exclusion Review Committee would have to be satisfied that he had taken positive steps to overcome his gambling problem and that there was no reason to prevent him from re-entering the casino. The Star also required Mr Bassili to see a counsellor employed by BetCare to obtain an assessment of his gambling behaviour.

12. Mr Bassili was assessed by a psychologist, Ms Alexander from BetCare who wrote a report dated 24 August 2015. Ms Alexander assessed Mr Bassili on the basis of the Canadian problem gambling index (CPGI) and concluded that he scored six on that scale suggesting that he is a “medium to problem gambler”. The Star provided the Tribunal with a copy of the CPGI index which states that a score of between three and seven represents a “moderate level of problems leading to some negative consequences”. A score of eight or more indicates “problem gambling with negative consequences and a possible loss of control”.

13. Ms Alexander’s conclusion was that, based on Mr Bassili’s history, “it would appear that he is a problem gambler”. She noted that he had not attended any counselling. Ms Alexander concluded her report with the summary of the reasons for her opinion:

There are several reasons why I feel that Mr Bassili should not receive the revocation of his exclusion order. He said, he ‘gets excited’ when gambling and has in the past lost his savings and overspent. I feel that he is not able to self-regulate at these times. Mr Bassili has also been attending The Star during his exclusion period and has lost money through gambling. This would show that he has compulsions that override his sense of what is right or wrong at these moments. From the history that Mr Bassili provided, his presentation on the day of the interview and the fact that he has a non-voluntary exclusion order in place as both his mother and doctor requested, Mr Bassili be excluded from the Casino due to his gambling behaviour, I would not recommend the revocation of the exclusion order, unless The Star has information to the contrary.

14. Mr Bassili denied some of the facts found by Ms Alexander including that he had gone to places other than the casino to gamble during his exclusion period and that he plays “the tab” and “”pokies”. He also noted that a score of 6 on the CPGI does not mean that he is a problem gambler.

15. In their letter to the Acting President of the Anti-Discrimination Board dated 7 March 2016, The Star includes a chronology. The chronology refers to an email to The Star purportedly written by Mr Bassili’s mother and to a handwritten letter also purportedly written by his mother. Both documents supported Mr Bassili’s application for revocation. As neither of these documents was in evidence, I have not taken them into account.

16. While the Exclusion & Contact policy states that each applicant will be advised of the decision about revocation, there is no requirement for The Star to give any reasons for the decision. None were given to Mr Bassili.

17. For the purposes of the hearing in the Tribunal, Mr Bassili obtained a letter from his treating psychiatrist, Dr Parmegiani dated 13 July 2016. Dr Parmegiani has been Mr Bassili’s psychiatrist for 10 years. He said that Mr Bassili remained compliant with prescribed anti-depressant and anti-psychotic medication and his symptoms of psychosis have remained under good clinical control. Dr Parmegiani expressed the view that Mr Bassili’s desire to gamble is not related to any element of his well-controlled psychotic illness. He said he does not believe that Mr Bassili fulfils the diagnostic criteria for a gambling disorder as specified in DSM-5 psychiatric classification system. While it was Dr Parmegiani’s advice that he should refrain from gambling, he expressed the view that it was his “clinical impression that a ban on his ability to gamble would be difficult to justify entirely on the basis of his concurrent and well-controlled psychiatric illness.”

18. Mr Bassili says that his medical conditions are well controlled by medication and he has developed sufficient insight over the last 10 years to be capable of gambling responsibly. According to Mr Bassili, The Star has assumed that his medical condition has not changed since 2006 whereas, in fact, he is no longer a problem gambler.

Acting President’s reasons for declining complaint

19. The Acting President of the Anti-Discrimination Board declined Mr Bassili’s complaint of disability discrimination as lacking in substance. the reasons she gave were that:

Mr Bassili contends is that the reason for the continued exclusion from the casino is his psychiatric disorder and, on that basis, the decision of The Star to exclude him is discriminatory.

The Star’s Responsible Gambling Committee, however, maintains that concerns for the complainant’s welfare and “behaviour which suggested Mr Bassili may have been experiencing difficulties with gambling” underpinned the decision to allow the order to stand. The respondent claims that the fact that Mr Bassili also suffers from a psychiatric disorder is tangential to the decision-making process.

While it is understandable that Mr Bassili has linked his psychiatric illness to the behaviour described by The Star is indicative of a gambling problem, The Star’s ability to fulfil its statutory obligations under the regime prescribed by the Casino Control Act should be unhindered.

The gambling related behaviour exhibited by the complainant, although likely influenced by psychological circumstances, was the subject of the order. The recent assessment of Mr Bassili by BetCare would suggest that those behaviours persist to the extent that allowing the complainant access to the casino is currently contraindicated.

Therefore, on the basis of information provided, Mr Bassili has not been able to substantiate the allegation that he has been treated less favourably on the ground of his disability in the same or similar circumstances as a person without his disability.

Consideration of the question

20. Contrary to Mr Bassili’s submission whether The Star afforded him procedural fairness is not relevant. The Tribunal’s role is to determine whether it is fair and just in all the circumstances for the complaint to proceed. That depends on the likelihood that Mr Bassili will be able to substantiate his complaint at a hearing. The Tribunal needs to assess the merits of the complaint on the basis of all the material available at the hearing. I do not need to determine whether the process itself was fair.

21. There is no dispute that paranoid schizophrenia with secondary depression is a disability within the meaning of that term in s 4 and s 49A of the Anti-Discrimination Act. By continuing to refuse Mr Bassili permission to enter or remain in the casino, The Star has refused to provide him with a service: Anti-Discrimination Act, s 49M(1)(a). It follows that I do not accept The Star’s submission or the Acting President’s conclusion, that the complaint “has the potential to conflict with the specific statutory regime prescribed by the Casino Control Act and the manner in which exclusion orders can be imposed or revoked.” There is no such defence or exception in the Anti-Discrimination Act. If the conduct comes within the definition of direct or indirect discrimination in s 49B of the Anti-Discrimination Act, and is not subject to any of the defences or exceptions in the legislation, it is unlawful.

22. Mr Bassili mentioned that he was relying on both direct and indirect discrimination. As The Star has not imposed any requirement or condition on patrons generally, with which Mr Bassili is unable to comply, the case is not one that fits within the definition of indirect discrimination in s 49B(1)(b). I have assessed the merits of the complaint on the basis of the definition of direct discrimination in s 49B(1)(a):

(1) A person ( "the perpetrator" ) discriminates against another person ( "the aggrieved person" ) on the ground of disability if the perpetrator:

(a) on the ground of the aggrieved person’s disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability

Differential treatment

23. The first component of direct disability discrimination is the "differential treatment" test. The treatment afforded to Mr Bassili must be compared with the treatment that would have been afforded to a person who does not have his disability in the same or similar circumstances. In the absence of an actual person whose treatment can be compared with the treatment given to Mr Bassili, the Tribunal would have to predict how The Star would have treated a hypothetical person in a comparable situation.

24. When making the comparison, “all of the objective features which surround the actual or intended treatment of the disabled person” must be identified: Purvis v New South Wales (2003) 217 CLR 92 at 160-161. The main objective feature in dispute in this case is the extent to which Mr Bassili is a problem gambler. If a person with the same level of difficulty with gambling that Mr Bassili has, but who does not have the same disabilities, applied for an exclusion order to be revoked, would The Star have revoked it?

25. Mr Bassili’s case, as I understand it, is that he has developed sufficient insight over the last 10 years to be capable of gambling responsibly. Contrary to the Acting Deputy President’s observation, there is no evidence in these proceedings that Mr Bassili’s gambling related behaviour is influenced by his “psychological circumstances”. Dr Parmegiani’s provided evidence after the Acting President had referred the complaint, that Mr Bassili’s desire to gamble is not related to his “well controlled psychotic illness” and that he does not fulfil the diagnostic criteria for a Gambling Disorder, as specified by the DSM-5 psychiatric classification system. Neither of those opinions contradicts Ms Alexander’s view that Mr Bassili appears to be a problem gambler. Although The Star did not provide written reasons, the evidence suggests that its decision was based on Ms Alexander’s report. There is no evidence to suggest that had The Star received the same report in relation to a person without Mr Bassili’s disabilities, it would have made a different decision.

Causation

26. The second element of direct discrimination is causation. For Mr Bassili’s complaint to succeed, at least one of the reasons for the decision not to revoke the exclusion order must have been his disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability: Anti-Discrimination Act, s 4A and s 48B(1) and (2).

27. The Star did not articulate any reason for the decision until after Mr Bassili complained. The absence of written reasons may have ignited Mr Bassili’s suspicion that one of the reasons for the decision was his disability. In hindsight The Star offered the reason that Mr Bassili “was experiencing difficulties with gambling, and . . . they were genuinely concerned for his welfare.” Because The Star did not state that one of the reasons was Mr Bassili’s disability, he would have to establish a causal link by inference from primary facts: Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262. The following principles identified in Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70] are relevant:

“...

(b) an inference must be reasonably drawn on the basis of the primary facts;

(c) an inference can be drawn from a combination of facts, none of which viewed alone would support that inference ;

(d) a fact relied on as the basis of an inference need not be proved to the requisite standard of proof; it is not enough that the inference is a mere possibility: it must be one of "probable connection";

(e) the inference must be a logical one, and not supposition;

(f) an inference cannot be made where more probable and innocent explanations are available on the evidence.”

28. There is no evidence which supports the inference that at least one reason for The Star’s decision was Mr Bassili’s disability. In particular, there is no evidence, apart from Mr Bassili’s assertion, which contradicts Ms Alexander’s opinion that he appears to be a problem gambler. For Mr Bassili’s complaint to have some chance of success, he would need to provide evidence to support his assertion that he has developed sufficient insight to be capable of gambling responsibly. Dr Parmegiani’s evidence does not go that far. If The Star refused to revoke the exclusion order in the face of such evidence, an inference may be capable of being drawn that a reason for that decision was Mr Bassili’s disability.

29. In my view, on balance, it is highly unlikely that a Tribunal hearing this matter would draw an inference that Mr Bassili’s disability was one of the reasons for The Star’s decision. In those circumstances it would not be fair or just for the complaint to proceed.

Order

The applicant’s application for leave for the complaint of disability discrimination to proceed is refused.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 27 July 2016