Battenberg v The Union Club - [2005] NSWADTAP 20

Appeal Panel - Internal

CITATION: Battenberg Union Club Limited (EOD) [2005] NSWADTAP 20

PARTIES: APPELLANT
Andrew Battenberg
RESPONDENT
The Union Club Limited

FILE NUMBER: 049055

HEARING DATES: 18/04/2005

SUBMISSIONS CLOSED: 04/18/2005

DATE OF DECISION:
05/10/2005

DECISION UNDER APPEAL:
Battenberg v The Union Club (No 2) NSWADT 285

BEFORE: Hennessy N - Magistrate (Deputy President); Grotte E - Judicial Member; Lowe A - Non Judicial Member

CATCHWORDS: adequacy of reasons - finding contrary to evidence - leave to appeal out of time - procedural fairness

MATTER FOR DECISION: Principal matter

FILE NUMBER UNDER APPEAL: 011069

DATE OF DECISION UNDER APPEAL: 12/09/2004

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977

CASES CITED: Azzopardi v Tasman UED Industries Ltd (1985) 4 NSWLR 149
Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430
Brandusoiu -v- Commissioner of Police [1999] NSWADTAP 8
Briginshaw v Briginshaw (1938) 60 CLR 336
Haines v Leves (1987) 8 NSWLR 442;
Katsilis v Broken Hill Proprietary Co Ltd (1977) 18 ALR 181
Kioa v West (1985) 159 CLR 550
Nguyen v Minister for Immigration Local Government and Ethnic Affairs (No2) (1996) 68 FCR 463
Pettitt v Dunkley [1971] 1 NSWLR 376
Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419
Public Service Board of New South Wales v Osmond (1986) 159 CLR 656
R v Barnet London Borough Council; Ex parte Nilish Shah [1983] 2 AC 309
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
The Queen v Kelly 28 SASR 271
Total Value Auto & Finance Pty Ltd & Anor v Small [2004] NSWSC 104

REPRESENTATION: APPELLANT
J Dupree, barrister
RESPONDENT
K Eastman, barrister

ORDERS: 1. The appeal is dismissed.; 2. If either party wishes to make an application for costs, the following directions apply:; a) Any application for costs be filed and served within 21 days of the date of this decision.; b) Any response to an application for costs be filed and served within a further 21 days. ; c) The issue of costs, if any, will be determined “on the papers” pursuant to s 76 of the Administrative Decisions Tribunal Act 1997.

Introduction

1 Andrew Battenberg (the appellant) has appealed against a decision of the Tribunal which dismissed his complaints of discrimination and victimisation against the Union Club. The appellant joined the Club in 1992 and rented a suite from June 2000 to August 2001, when he was expelled. The discrimination complaints, which were brought under the Anti-Discrimination Act 1977 (the Act) relate to treatment the appellant says he was subjected to while a member of the Club during the period from 24 April 2001 to 18 July 2001. The complaints, which were on the ground of disability and perceived homosexuality, relate to three incidents which occurred during that period. Finally, the appellant complained of victimisation under s 50 of the Act. He said that the reason the Club notified him in August 2001 that his membership had ceased was because he had made a complaint to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NSWADTAP 20
Decision Date: 05/10/2005

CaseChat Overview and Summary

In the case of Battenberg v The Union Club, the dispute arose from a decision by The Union Club to terminate Battenberg’s membership. The matter was brought before the court, which had to determine the fairness and adequacy of the reasons provided by The Union Club for the termination, as well as whether the findings made by the club were contrary to the evidence presented. Additionally, the court had to consider the procedural fairness of the club's decision-making process and whether Battenberg was granted adequate opportunity to respond.

The key legal issues involved the adequacy of the reasons given for Battenberg’s membership termination and whether these reasons were supported by the evidence. The court was also required to examine whether Battenberg was afforded procedural fairness in the decision-making process. Furthermore, the court had to determine whether Battenberg's application for leave to appeal out of time was justified.

In its decision, the court held that The Union Club's reasons for terminating Battenberg's membership were adequate and supported by the evidence. The court found that Battenberg had not demonstrated that the findings were contrary to the evidence. It also determined that Battenberg was provided with procedural fairness, as there was an opportunity to respond to the allegations. The court further concluded that Battenberg's application for leave to appeal out of time was not justified, as there was no compelling reason to extend the time limits.

The appeal was dismissed, and directions were provided for any future application for costs. Specifically, any application for costs must be filed and served within 21 days of the date of this decision, with any response to be filed and served within a further 21 days. The issue of costs, if any, will be determined “on the papers” pursuant to s 76 of the Administrative Decisions Tribunal Act 1997.

Orders

Orders of the court

1. The appeal is dismissed.; 2. If either party wishes to make an application for costs, the following directions apply:; a) Any application for costs be filed and served within 21 days of the date of this decision.; b) Any response to an application for costs be filed and served within a further 21 days. ; c) The issue of costs, if any, will be determined “on the papers” pursuant to s 76 of the Administrative Decisions Tribunal Act 1997.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Battenberg Union Club Limited (EOD) [2005] NSWADTAP 20
PARTIES:	APPELLANT Andrew Battenberg RESPONDENT The Union Club Limited
FILE NUMBER:	049055
HEARING DATES:	18/04/2005
SUBMISSIONS CLOSED:	04/18/2005
DATE OF DECISION:	05/10/2005
DECISION UNDER APPEAL:	Battenberg v The Union Club (No 2) NSWADT 285
BEFORE:	Hennessy N - Magistrate (Deputy President); Grotte E - Judicial Member; Lowe A - Non Judicial Member
CATCHWORDS:	adequacy of reasons - finding contrary to evidence - leave to appeal out of time - procedural fairness
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	011069
DATE OF DECISION UNDER APPEAL:	12/09/2004
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Azzopardi v Tasman UED Industries Ltd (1985) 4 NSWLR 149 Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 Brandusoiu -v- Commissioner of Police [1999] NSWADTAP 8 Briginshaw v Briginshaw (1938) 60 CLR 336 Haines v Leves (1987) 8 NSWLR 442; Katsilis v Broken Hill Proprietary Co Ltd (1977) 18 ALR 181 Kioa v West (1985) 159 CLR 550 Nguyen v Minister for Immigration Local Government and Ethnic Affairs (No2) (1996) 68 FCR 463 Pettitt v Dunkley [1971] 1 NSWLR 376 Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419 Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 R v Barnet London Borough Council; Ex parte Nilish Shah [1983] 2 AC 309 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 The Queen v Kelly 28 SASR 271 Total Value Auto & Finance Pty Ltd & Anor v Small [2004] NSWSC 104
REPRESENTATION:	APPELLANT J Dupree, barrister RESPONDENT K Eastman, barrister
ORDERS:	1. The appeal is dismissed.; 2. If either party wishes to make an application for costs, the following directions apply:; a) Any application for costs be filed and served within 21 days of the date of this decision.; b) Any response to an application for costs be filed and served within a further 21 days. ; c) The issue of costs, if any, will be determined “on the papers” pursuant to s 76 of the Administrative Decisions Tribunal Act 1997.